Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12, Commercial Mortgage Pass-Through Certificates, Series 2013-C12, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C11), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C12), Pooling and Servicing Agreement (COMM 2013-Lc13 Mortgage Trust)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of ~~U.S. Bank~~ Wxxxx Fargo Bank, National Association, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-~~C12~~C10, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C10, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C12), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C11), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of ~~Mxxxxx Sxxxxxx~~ Xxxxxx Xxxxxxx Bank of America ~~Mxxxxxx Lxxxx~~ Xxxxxxx Xxxxx Trust 2013-~~C12~~C7, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C7, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C7), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C7)

Operation of REO Property. (a) ~~The~~ Each Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property (excluding the Mortgaged Properties relating to the Non-Trust Serviced Pari Passu Loan) separate and apart from its own funds and general assets and shall establish and maintain with respect to each such REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of~~ "U.S. Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2007-~~C12, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ IQ13" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special ~~Servicer~~ Servicers shall deposit all funds received with respect to such an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special ~~Servicer~~ Servicers shall account separately for funds received or expended with respect to each such REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The applicable Special Servicer shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before 2:00 p.m. on each Special Servicer Remittance Date, the applicable Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the applicable Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The applicable Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the applicable Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the applicable Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the applicable Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the applicable Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the applicable Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The applicable Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the applicable Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the applicable Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The applicable Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of ~~the~~ such Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the Special Servicer which shall be paid by ~~the~~ such Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special ~~Servicer~~ Servicers shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property (excluding the Mortgaged Properties relating to the Non-Trust Serviced Pari Passu Loan) which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the applicable Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The applicable Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the applicable Master Servicer of any election by it to incur such tax, and ~~the~~ such Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the applicable Special Servicer and pay the applicable tax from the amounts collected by ~~the~~ such Special Servicer. Subject to, and without limiting the generality of the foregoing, the applicable Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the applicable Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq13)

Operation of REO Property. ~~(a)~~ The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC~~ "Xxxxx Fargo Bank, National Association~~, as Special Servicer on behalf of U.S. Bank National Association~~., as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2005-~~C12~~HQ5, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 HQ5), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 HQ5), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 HQ5)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer ~~on behalf of U.S. Bank~~ for Wxxxx Fargo Bank, National Association, as Trustee for the ~~benefit of the~~ Holders of Mxxxxx Sxxxxxx ~~Bank of America Mxxxxxx Lxxxx Trust 2013-C12~~Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2012-~~C12~~C4, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]” (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of ~~U.S.~~ Deutsche Bank ~~National Association~~Trust Company Americas, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-~~C12~~C11, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C11, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C10), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C12), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C11)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services~~Rialto Capital Advisors, ~~a Division of PNC Bank, National Association~~LLC, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of ~~Mxxxxx Sxxxxxx~~ Xxxxxx Xxxxxxx Bank of America ~~Mxxxxxx Lxxxx~~ Xxxxxxx Xxxxx Trust ~~2013~~2014-~~C12~~C14, Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2014-~~C12~~C14, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services~~LNR Partners, ~~a Division of PNC Bank, National Association~~LLC, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of ~~Mxxxxx Sxxxxxx~~ Xxxxxx Xxxxxxx Bank of America ~~Mxxxxxx Lxxxx~~ Xxxxxxx Xxxxx Trust ~~2013~~2014-~~C12~~C16, Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2014-~~C12~~C16, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C16), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C16)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services~~Rialto Capital Advisors, ~~a Division of PNC Bank, National Association~~LLC, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-~~C12~~C13, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C13, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C13), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C13)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and~~ and/or the holder of the ~~related B Note if in connection with an A/B Whole Loan and the holder of the related~~ Serviced Companion Loan ~~if in connection~~ with a respect to the Serviced Loan ~~Pair~~Group) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12,~~ IQ8" and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loan, as their interests may appear (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before ~~each~~ 2:00 p.m. on the Special Servicer Remittance Date, the Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding ~~such~~ the Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Subordinate Note (or Operating Adviser on its behalf (pursuant to the related Intercreditor ~~Agreement~~Agreement or otherwise)), if applicable, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (~~and in the case of any A/B Whole Loan,~~ and/or the holder of the ~~related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related~~ Serviced Companion Loan ~~and~~ with respect to the ~~Trust as a collective whole~~Serviced Loan Group), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (~~and, if applicable,~~ and/or the holder of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loan with respect to the Serviced Loan Group) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer ~~or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust (and/or the holder of the Serviced Companion Loan with respect to the Serviced Loan Group) or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12~~TOP15, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust Series 2004-Top15), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 HQ4)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services~~NS Servicing II, ~~a Division of PNC Bank, National Association~~LLC, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of ~~Mxxxxx Sxxxxxx~~ Xxxxxx Xxxxxxx Bank of America ~~Mxxxxxx Lxxxx~~ Xxxxxxx Xxxxx Trust 2013-~~C12~~C8, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C8, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C8)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust ~~2013~~2012-~~C12~~C6, Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2012-~~C12~~C6, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the ~~related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced~~ Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2001-~~C12, the holder of any Serviced Companion Loan~~ TOP3 and the holder of any ~~B Note~~ related Companion Loan as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the ~~holder~~ holders of ~~a B Note or a Serviced~~ the Companion ~~Loan~~Loans) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc), Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2005-~~C12~~TOP17, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s 's obligations in this Agreement with respect to “"REO Property” " shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 TOP 17)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx ~~Bank of America Mxxxxxx Lxxxx Trust 2013-C12~~Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2012-~~C12~~C5, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]” (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.REO

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C5)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12~~TOP16, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.'s sole

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Top16)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer ~~on behalf of~~ for U.S. Bank National Association, as Trustee for the ~~benefit of the~~ Holders of Mxxxxx Sxxxxxx ~~Bank of America Mxxxxxx Lxxxx Trust 2013-C12~~Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2011-~~C12~~C3, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]” (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2011-C3), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2011-C3)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Stearns Commercial Mortgage Securities Inc. Commercial Mortgage Pass-~~Through Certificates,~~ Thxxxxx Xertificates Series ~~2013~~2005-~~C12~~TOP18, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s 's obligations in this Agreement with respect to “"REO Property” " shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top18), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Top18)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of ~~U.S.~~ Deutsche Bank ~~National Association~~Trust Company Americas, as Trustee for the benefit of the Holders of ~~Mxxxxx Sxxxxxx~~ Xxxxxx Xxxxxxx Bank of America ~~Mxxxxxx Lxxxx~~ Xxxxxxx Xxxxx Trust ~~2013~~2014-~~C12~~C15, Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2014-~~C12~~C15, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property ~~one or more accounts~~ an account held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2000-~~C12, the holder~~ WF2 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the ~~Master~~ Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the ~~Master~~ Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay to itself as additional ~~Special Servicing Compensation any interest or net~~ special servicing compensation that portion of such reinvestment income ~~earned~~ that exceeds the sum of (A) any and all amounts of Unpaid Interest for any and all Classes of Certificates (other than the Residual Certificates) as of the close of business on ~~funds deposited~~ the Distribution Date occurring in the ~~REO Account. The~~ calendar month preceding such Special Servicer Remittance Date, and (B) the aggregate amount of Realized Losses theretofore allocated to any ~~losses incurred in respect~~ all Classes of ~~any~~ Certificates (other than the Residual Certificates) and not reimbursed to the Holders of such ~~investments shall be for the account~~ Certificates as of the ~~Special Servicer which shall deposit the amount~~ close of business on such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstandingDistribution Date. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Advisor (provided that one has been elected pursuant to Section 9.37 of this Agreement), and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may ~~advance from its own funds~~ request that the Servicer make Servicing Advances (which the Servicer shall make, subject to Section 4.4) to pay for the following ~~items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e))~~items, to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, ~~shall~~ shall, use reasonable best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Advisor (provided that one has been elected pursuant to Section 9.37 of this Agreement) and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the ~~Master Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the ~~Master~~ Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (f) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

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

Operation of REO Property. (a) ~~The~~ Each Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and the holder of the related B Note~~ and, if in connection with ~~an A/B Whole~~ a Serviced Loan ~~and~~ Group, the holder of the related Serviced Companion ~~Loan if in connection with a Loan Pair~~Loan) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2006-~~C12,~~ IQ11 and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loans, as their interests may ~~appear~~ appear" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special ~~Servicer~~ Servicers shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special ~~Servicer~~ Servicers shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special ~~Servicer~~ Servicers shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before 2:00 p.m. on each Special Servicer Remittance Date, the applicable Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the applicable Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The applicable Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the applicable Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the applicable Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the applicable Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the applicable Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to the related ~~Intercreditor Agreement,~~ Co-Lender Agreement or otherwise)) to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the applicable Special Servicer deems to be in the best interest of the Trust (~~and~~ or, with respect to a Serviced Loan Group, in the ~~case of any A/B Whole Loan, the holder~~ best interests of the ~~related B Note~~ Trust and ~~the Trust as a collective whole, and in the case of any Loan Pair,~~ the holder of the related Serviced Companion ~~Loan and the Trust~~ Loan, as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The applicable Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the applicable Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the applicable Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The applicable Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the ~~holder~~ holders of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loans) pursuant to this subsection (d) for indemnification of ~~the~~ such Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by ~~the~~ such Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special ~~Servicer~~ Servicers shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the applicable Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The applicable Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and ~~the~~ such Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the applicable Special Servicer and pay the applicable tax from the amounts collected by ~~the~~ such Special Servicer. Subject to, and without limiting the generality of the foregoing, the applicable Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the applicable Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq11)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the ~~related Serviced~~ Xxxx Xxxxx Companion Loan if in connection with a the Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2003-~~C12, the holder of any Serviced Companion Loan~~ HQ2 and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of ~~any~~ the Loan Pair, the holder of the ~~related Serviced~~ Xxxx Xxxxx Companion ~~Loan and the Trust as a collective whole~~Loan), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ the Xxxx Xxxxx Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer ~~or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep for Ser 2003 Hq2)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property ~~one or more accounts~~ an account held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC~~ "LaSalle National Bank~~, National Association, as Special Servicer on behalf of U.S. Bank National Association~~, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgxx Xxxnxxx Xxxital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~1998-~~C12, the holder~~ WF1 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO 150 158 Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the ~~Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)~~Trust), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and~~expenditures); Notwithstanding the above, the Special Servicer shall pay for such items if, but only if, in the Special Servicer's good faith reasonable business judgment, such amounts will be recoverable from (i) proceeds received in respect of such REO Property prior to the ~~extent necessary~~ final liquidation of such REO Property or (ii) Liquidation Proceeds, subject to ~~comply with~~ the ~~REMIC Provisions, capital expenditures)~~provisions of Section 4.4 hereof. (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use its best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account;; 151 (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced ~~by the Master Servicer or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts ~~collected~~ paid by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not:: 152 (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ~~ten (10)~~ thirty percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association~~“_______, as Trustee for the ~~benefit of the~~ Holders of Mxxxxx Sxxxxxx ~~Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013-C12, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ 20__-__” (each, an “REO Account”), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before ~~each~~ [2:00 p.m.] on the Special Servicer Remittance Date, the Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding ~~such~~ the Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor Agreement,~~ this Agreement to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than ~~capital improvements and, to the extent necessary to comply with the REMIC Provisions,~~ capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer ~~or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc.)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair~~Mortgage Loan) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2002-~~C12, the holder of any Serviced Companion Loan~~ TOP7 and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note ~~and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan~~ and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B ~~Note or a Serviced Companion Loan~~Note) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer ~~or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Series 2002 Top7)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2000-~~C12, the holder~~ LIFE2 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use reasonable best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and the holder of the related B Note~~ and, if in connection with ~~an A/B Whole~~ a Serviced Loan ~~and~~ Group, the holder of the related Serviced Companion ~~Loan if in connection with a Loan Pair~~Loan) in the name of ~~Midland Loan Services, a Division of PNC~~ "Wells Fargo Bank, ~~National Association, as Special Servicer on behalf of U.S. Bank National Association~~N.A., as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanlex Xxxital I Inc. Commercial Mortgage Securities Inc. Cxxxxxxixx Xxxxgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2006-~~C12,~~ IQ12 and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loans, as their interests may ~~appear~~ appear" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before ~~each~~ 2:00 p.m. on the Special Servicer Remittance Date, the Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding ~~such~~ the Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to the related ~~Intercreditor Agreement,~~ Co-Lender Agreement or otherwise)) to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (~~and~~ or, with respect to a Serviced Loan Group, in the ~~case of any A/B Whole Loan, the holder~~ best interests of the ~~related B Note~~ Trust and ~~the Trust as a collective whole, and in the case of any Loan Pair,~~ the holder of the related Serviced Companion ~~Loan and the Trust~~ Loan, as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the ~~holder~~ holders of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loans) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq12)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related ~~Serviced~~ Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2003-~~C12~~TOP9, the holder of any ~~Serviced~~ Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser (and, solely with respect to a Pari Passu Loan, the related Other Operating Adviser, if any), and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related ~~Serviced~~ Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party~~Operating Adviser (and, solely with respect to a Pari Passu Loan, the -230- related Other Operating Adviser, if any) and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Ser 2003 Top9)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2000-~~C12, the holder~~ PRIN [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust ~~subject to Sections 4.4~~ in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and~~expenditures); (iv) Notwithstanding the above, the Special Servicer shall pay for such items if, but only if, in the Special Servicer's good faith reasonable business judgment, such amounts will be recoverable from (i) proceeds received in respect of such REO Property prior to the ~~extent necessary~~ final liquidation of such REO Property or (ii) Liquidation Proceeds, subject to ~~comply with~~ the ~~REMIC Provisions, capital expenditures)~~provisions of Section 4.4 hereof. (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use its best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced ~~by the Master Servicer or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by ~~any~~ either REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines that the after-tax net income or earnings with respect to such REO Property ~~will offset any tax under the REMIC Provisions relating to such income or earnings and~~ will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (i) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (iii) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (iiiii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (~~iii~~iv) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ~~ten (10)~~ thirty percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (ivv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by ~~the applicable~~ REMIC ~~Pool~~I, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital 1 Inc Series 2000-Prin)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12~~Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2006-~~C12~~TOP21, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser (and with respect to the Monmouth Mall Mortgage Loan, the Monmouth Mall Mortgage Loan Operating Adviser), and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Top21)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of ~~U.S. Bank~~ Xxxxx Fargo Bank, National Association, as Trustee for the benefit of the Holders of ~~Mxxxxx Sxxxxxx~~ Xxxxxx Xxxxxxx Bank of America ~~Mxxxxxx Lxxxx~~ Xxxxxxx Xxxxx Trust 2013-~~C12~~C9, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C9, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C9)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of ~~U.S. Bank~~ Wxxxx Fargo Bank, National Association, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-~~C12~~C9, Commercial Mortgage Pass-Through Certificates, Series 2013-~~C12~~C9, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2013-C9)

Operation of REO Property. 219- (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of~~ "U.S. Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2005-~~C12~~HQ7, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); ; (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005-Hq7)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12~~TOP13, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stan Dean Wit Cap Com Mort Ps THR CRTS Ser 2003-Top13)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the ~~related Serviced~~ WestShore Plaza Companion Loan if in connection with a the Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Stearns Commercial Mortgage ~~Pass~~Securities Inc. Commercial Mortgage Pasx-~~Through Certificates,~~ Xxxxxgh Certificates Series ~~2013~~2003-~~C12~~TOP12, the holder of ~~any Serviced~~ the WestShore Plaza Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of ~~any~~ the Loan Pair, the holder of the ~~related Serviced~~ WestShore Plaza Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: : (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be ~~consistent~~ consisten t with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ the WestShore Plaza Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for the Kimball Lane Loan REMIC or REMIC I by the REO Property would not ~~result in the~~ rexxxx xx xxx imposition of a tax upon the Kimball Lane Loan REMIC or REMIC I or (ii) in accordance with the ~~Servicing Standard~~Sxxxxxxxx Xxxndard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an ~~Independent~~ I ndependent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

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

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12~~Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-~~Through Certificates,~~ Txxxxxx Certificates Series ~~2013~~2006-~~C12~~TOP24, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s 's obligations in this Agreement with respect to “"REO Property” " shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Top24)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services~~"Xxxxx Fargo Bank Minnesota, ~~a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association~~N.A., as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2001-~~C12, the holder~~ PPM [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may ~~advance~~ request advances from ~~its own funds~~ the Master Servicer to pay for the following items (which amounts shall be reimbursed by the ~~Master Servicer or the~~ Trust ~~subject to Sections 4.4~~ in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and~~expenditures); (iv) Notwithstanding the above, the Special Servicer shall request the Master Servicer to advance such items if, but only if, in the Special Servicer's good faith reasonable business judgment, such amounts will be recoverable from (i) proceeds received in respect of such REO Property prior to the ~~extent necessary~~ final liquidation of such REO Property or (ii) Liquidation Proceeds, subject to ~~comply with~~ the ~~REMIC Provisions, capital expenditures)~~provisions of Section 4.4 hereof. (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with ~~any~~ an Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party~~Operating Adviser (provided, that if the Operating Adviser has not responded to such request for consent within 15 days of notice of such proposed Independent Contractor, the Operating Adviser will be deemed to have consented thereto; provided, however, that with respect to any single event of appointment of an affiliated Independent Contractor, the Operating Adviser will have the right to withhold its consent to successive proposals for such appointment for a period of up to 60 days after its first notice of a proposed affiliated Independent Contractor and thereafter, the consent of the Operating Adviser will no longer be required) and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced ~~by the Master Servicer or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by ~~any~~ either REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines that the after-tax net income or earnings with respect to such REO Property ~~will offset any tax under the REMIC Provisions relating to such income or earnings and~~ will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (i) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (iii) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (iiiii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (~~iii~~iv) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (ivv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by ~~the applicable~~ REMIC ~~Pool~~I, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Trust 2001-PPM)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair~~Mortgage Loan) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ -207- Certificates Series ~~2013~~2001-~~C12, the holder of any Serviced Companion Loan~~ TOP4 and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B ~~Note or a Serviced Companion Loan~~Note) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2001-Top4)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair) in the name of Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of ~~U.S.~~ Deutsche Bank ~~National Association~~Trust Company Americas, as Trustee for the benefit of the Holders of Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust ~~2013~~2014-~~C12~~C15, Commercial Mortgage Pass-Through Certificates, Series ~~2013~~2014-~~C12~~C15, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear (each, an “REO Account”), which shall be an Eligible Account. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two (2) days of receipt of properly identified funds. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible Investments at the risk of the Special Servicer. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and remit to the Master Servicer for deposit into the Collection Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; provided that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, subject to Section 10.3 and the terms and conditions of any related Intercreditor Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital improvements and, to the extent necessary to comply with the REMIC Provisions, capital expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Applicable Control Party, and a Nondisqualification Opinion, must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense). To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the Certificate Administrator and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Certificate Administrator with all information for the Certificate Administrator to file the necessary tax returns in connection therewith and (iii) upon request from the Certificate Administrator, pay from such account to the Certificate Administrator the amount of the applicable tax. The Certificate Administrator shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten (10) percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ninety (90) days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C16)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association~~"_______, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013-C12, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ 20__-__" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before ~~each~~ [2:00 p.m.] on the Special Servicer Remittance Date, the Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding ~~such~~ the Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor Agreement,~~ this Agreement to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer ~~or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)

Operation of REO Property. (a) ~~The~~ Each Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2005-~~C12, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ IQ9" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special ~~Servicer~~ Servicers shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special ~~Servicer~~ Servicers shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special ~~Servicer~~ Servicers shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before 2:00 p.m. on each Special Servicer Remittance Date, the applicable Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the applicable Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The applicable Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the applicable Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the applicable Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the applicable Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the applicable Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the applicable Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The applicable Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the applicable Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the applicable Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The applicable Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of ~~the~~ such Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by ~~the~~ such Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special ~~Servicer~~ Servicers shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the applicable Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The applicable Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and ~~the~~ such Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the applicable Special Servicer and pay the applicable tax from the amounts collected by ~~the~~ such Special Servicer. Subject to, and without limiting the generality of the foregoing, the applicable Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the applicable Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 IQ9)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12~~HQ3, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for the International Plaza Pari Passu Loan REMIC or REMIC I by the REO Property would not result in the imposition of a tax upon the International Plaza Pari Passu Loan REMIC or REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Capital I Tr 2004-Hq3)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the ~~related Serviced~~ Federal Center Plaza Companion Loan if in connection with a the Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2003-~~C12~~TOP10, the holder of ~~any Serviced~~ the Federal Center Plaza Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of ~~any~~ the Loan Pair, the holder of the ~~related Serviced~~ Federal Center Plaza Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: : (i) the terms and conditions of any such contract shall not be inconsistent herewith; ; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ the Federal Center Plaza Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2003-Top10)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2001-~~C12, the holder~~ TOP1 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use reasonable best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep for Ser 2001-Top1)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12~~Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-~~Through Certificates,~~ Txxxxxx Certificates Series ~~2013~~2006-~~C12~~TOP22, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s 's obligations in this Agreement with respect to “"REO Property” " shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage SecuritiesTrust 2006-Top22)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property ~~one or more accounts~~ an account held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC~~ "LaSalle National Bank~~, National Association, as Special Servicer on behalf of U.S. Bank National Association~~, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgxx Xxxnxxx Xxxital I Inc. Commercial Mortgage ~~Pass~~Pass- 162 172 Through Certificates Series 1999-~~Through Certificates, Series 2013-C12, the holder~~ WF1 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the ~~Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)~~Trust), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and~~expenditures); (iv) Notwithstanding the above, the Special Servicer shall pay for such items if, but only if, in the Special Servicer's good faith reasonable business judgment, such amounts will be recoverable from (i) proceeds received in respect of such REO Property prior to the ~~extent necessary~~ final liquidation of such REO Property or (ii) Liquidation Proceeds, subject to ~~comply with~~ the ~~REMIC Provisions, capital expenditures)~~provisions of Section 4.4 hereof. (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC 163 173 Provisions, shall use its best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced ~~by the Master Servicer or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a 164 174 tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (i) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (iii) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (iiiii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (~~iii~~iv) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ~~ten (10)~~ thirty percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (ivv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)

Operation of REO Property. (a) The applicable Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and the holder of the related B Note~~ and, if in connection with ~~an A/B Whole~~ a Serviced Loan ~~and~~ Group, the holder of the related Serviced Companion ~~Loan if in connection with a Loan Pair~~Loan) in the name of ~~Midland Loan Services, a Division of PNC~~ "Wells Fargo Bank, National ~~Association, as Special Servicer on behalf of U.S. Bank National Association~~Associatxxx, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commexxxxx Mxxxxxxx Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2007-~~C12,~~ IQ15 and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loans, as their interests may ~~appear~~ appear" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The applicable Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The applicable Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The applicable Special Servicer shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before 2:00 p.m. on each Special Servicer Remittance Date, the applicable Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the applicable Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) ~~the~~ such Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The applicable Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the applicable Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the applicable Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the applicable Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the applicable Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to the related ~~Intercreditor Agreement,~~ Co-Lender Agreement or otherwise)) to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the applicable Special Servicer deems to be in the best interest of the Trust (~~and~~ or, with respect to a Serviced Loan Group, in the ~~case of any A/B Whole Loan, the holder~~ best interests of the ~~related B Note~~ Trust and ~~the Trust as a collective whole, and in the case of any Loan Pair,~~ the holder of the related Serviced Companion ~~Loan and the Trust~~ Loan, as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The applicable Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve ~~the~~ such Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of ~~the~~ such Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) ~~the~~ such Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property~~. The~~ . (e) Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the ~~holder~~ holders of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loans) pursuant to this subsection (d) for indemnification of ~~the~~ such Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the applicable Special Servicer which shall be paid by ~~the~~ such Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the applicable Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property (excluding the Mortgaged Properties relating to the Non-Trust Serviced Pari Passu Loan) which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC Pool of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I or the RCE Loan REMIC, as applicable, by the REO Property would not result in the imposition of a tax upon REMIC I or the RCE Loan REMIC, as applicable, or (ii) in accordance with the Servicing Standard, the applicable Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The applicable Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and the applicable Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the applicable Special Servicer and pay the applicable tax from the amounts collected by ~~the~~ such Special Servicer. Subject to, and without limiting the generality of the foregoing, the applicable Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, ~~the~~ such Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case ~~the~~ such Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq15)

Operation of REO Property. (a) The applicable Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and the holder of the related B Note~~ and, if in connection with ~~an A/B Whole~~ a Serviced Loan ~~and~~ Group, the holder of the related Serviced Companion ~~Loan if in connection with a Loan Pair~~Loan) in the name of ~~Midland Loan Services, a Division of PNC~~ "Wells Fargo Bank, National ~~Association~~Associaxxxx, as ~~Special Servicer~~ Paying Agent, on behalf of ~~U.S.~~ LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commxxxxxx Xxxxxxxe Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2007-~~C12,~~ IQ16 and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loans, as their interests may ~~appear~~ appear" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The applicable Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The applicable Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The applicable Special Servicer shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before 2:00 p.m. on each Special Servicer Remittance Date, the applicable Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the applicable Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) ~~the~~ such Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The applicable Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the applicable Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the applicable Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the applicable Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the applicable Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to the related ~~Intercreditor Agreement,~~ Co-Lender Agreement or otherwise)) to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the applicable Special Servicer deems to be in the best interest of the Trust (~~and~~ or, with respect to a Serviced Loan Group, in the ~~case of any A/B Whole Loan, the holder~~ best interests of the ~~related B Note~~ Trust and ~~the Trust as a collective whole, and in the case of any Loan Pair,~~ the holder of the related Serviced Companion ~~Loan and the Trust~~ Loan, as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The applicable Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve ~~the~~ such Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of ~~the~~ such Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) ~~the~~ such Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property~~. The~~ . (e) Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the ~~holder~~ holders of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loans) pursuant to this subsection (d) for indemnification of ~~the~~ such Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the applicable Special Servicer which shall be paid by ~~the~~ such Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the applicable Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property (excluding the Mortgaged Property relating to a Non-Trust Serviced Pari Passu Loan) which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC Pool of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I I, or (ii) in accordance with the Servicing Standard, the applicable Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The applicable Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and the applicable Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the applicable Special Servicer and pay the applicable tax from the amounts collected by ~~the~~ such Special Servicer. Subject to, and without limiting the generality of the foregoing, the applicable Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, ~~the~~ such Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case ~~the~~ such Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq16)

Operation of REO Property. (a) ~~The~~ Each Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC~~ "Wells Fargo Bank, ~~National Association, as Special Servicer on behalf of U.S. Bank National Association~~N.A., as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Xxxxxal I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2005-~~C12, the holder of any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ IQ10" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special ~~Servicer~~ Servicers shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special ~~Servicer~~ Servicers shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special ~~Servicer~~ Servicers shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before 2:00 p.m. on each Special Servicer Remittance Date, the applicable Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the applicable Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The applicable Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the applicable Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the applicable Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the applicable Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the applicable Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor Agreement,~~ this Agreement to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the applicable Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The applicable Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the applicable Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the applicable Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The applicable Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of ~~the~~ such Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by ~~the~~ such Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special ~~Servicer~~ Servicers shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the applicable Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The applicable Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and ~~the~~ such Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the applicable Special Servicer and pay the applicable tax from the amounts collected by ~~the~~ such Special Servicer. Subject to, and without limiting the generality of the foregoing, the applicable Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the applicable Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 IQ10)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related ~~Serviced~~ Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2003-~~C12~~TOP9, the holder of any ~~Serviced~~ Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser (and, solely with respect to a Pari Passu Loan, the related Other Operating Adviser, if any), and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the ~~Trust~~ Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related ~~Serviced~~ Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party~~Operating Adviser (and, solely with respect to a Pari Passu Loan, the related Other Operating Adviser, if any) and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section ~~856(e)(4)(B~~856(e) (4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Ser 2003 Top9)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and~~ and/or the holder of the ~~related B Note if in connection with an A/B Whole Loan and the holder of the related~~ Serviced Companion Loan ~~if in connection~~ with a respect to the Serviced Loan ~~Pair~~Group) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Commexxxxx Mxxxxxxx Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12,~~ IQ8" and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loan, as their interests may appear (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before ~~each~~ 2:00 p.m. on the Special Servicer Remittance Date, the Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding ~~such~~ the Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Subordinate Note (or Operating Adviser on its behalf (pursuant to the related Intercreditor ~~Agreement~~Agreement or otherwise)), if applicable, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (~~and in the case of any A/B Whole Loan,~~ and/or the holder of the ~~related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related~~ Serviced Companion Loan ~~and~~ with respect to the ~~Trust as a collective whole~~Serviced Loan Group), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (~~and, if applicable,~~ and/or the holder of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loan with respect to the Serviced Loan Group) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer ~~or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust (and/or the holder of the Serviced Companion Loan with respect to the Serviced Loan Group) or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates, Series 2013~~Cxxxxxxcxxxx Xxries 2006-~~C12~~HQ10, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures).. cclii (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income ccliii from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the ~~Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.~~Special

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Hq10)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~1999-~~C12, the holder~~ LIFE1 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account -162- sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the ~~Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)~~Trust), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and~~expenditures); (iv) Notwithstanding the above, the Special Servicer shall pay for such items if, but only if, in the Special Servicer's good faith reasonable business judgment, such amounts will be recoverable from (i) proceeds received in respect of such REO Property prior to the ~~extent necessary~~ final liquidation of such REO Property or (ii) Liquidation Proceeds, subject to ~~comply with~~ the ~~REMIC Provisions, capital expenditures)~~provisions of Section 4.4 hereof. (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use its best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced ~~by the Master Servicer or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the ~~Trustee, the Certificate Administrator~~ Trustee and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Trustee with all information for the ~~Certificate Administrator~~ Trustee to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Trustee the amount of the applicable tax. The ~~Certificate Administrator~~ Trustee shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (i) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (iii) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (iiiii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (~~iii~~iv) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ~~ten (10)~~ thirty percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (ivv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Depositor for Ser 1999-Life1)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (~~and the holder of the related B Note~~ and, if in connection with ~~an A/B Whole~~ a Serviced Loan ~~and~~ Group, the holder of the related Serviced Companion ~~Loan if in connection with a Loan Pair~~Loan) in the name of ~~Midland Loan Services, a Division of PNC~~ "Wells Fargo Bank, ~~National Association, as Special Servicer on behalf of U.S. Bank National Association~~N.A., as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Morgan Stanley Xxxxxal I Inc. Commercial Mortgage Securities Inc. Comxxxxxxl Xxxxxxge Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2006-~~C12,~~ IQ12 and the ~~holder~~ holders of ~~any~~ the Serviced Companion ~~Loan and the holder of any B Note~~ Loans, as their interests may ~~appear~~ appear" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO ~~Account~~ Accounts within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the applicable Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before ~~each~~ 2:00 p.m. on the Special Servicer Remittance Date, the Special Servicer shall withdraw from ~~each~~ the applicable REO Account and remit to the Master Servicer for deposit ~~into~~ in the ~~Collection~~ applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding ~~such~~ the Special Servicer Remittance Date on or with respect to the related REO Properties; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in ~~the~~ such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the applicable Master Servicer of all such remittances (and the REO Properties to which the ~~deposits~~ remittances relate) made into the ~~Collection~~ applicable Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional ~~Special Servicing Compensation~~ special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from ~~the~~ such REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation or consent rights of the ~~terms and conditions~~ holder of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to the related ~~Intercreditor Agreement,~~ Co-Lender Agreement or otherwise)) to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (~~and~~ or, with respect to a Serviced Loan Group, in the ~~case of any A/B Whole Loan, the holder~~ best interests of the ~~related B Note~~ Trust and ~~the Trust as a collective whole, and in the case of any Loan Pair,~~ the holder of the related Serviced Companion ~~Loan and the Trust~~ Loan, as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the applicable Master Servicer or the Trust subject to Sections 4.4 in accordance with Section ~~4.6(e~~4.6(d)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. . (e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the ~~holder~~ holders of ~~a B Note or a~~ the Serviced Companion ~~Loan~~Loans) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a the Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the applicable Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section ~~4.6(e~~4.6(d) hereof. (ef) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the applicable Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq12)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2004-~~C12~~TOP14, the holder of any Serviced Companion Mortgage Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of any Loan Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or a Serviced Companion Mortgage Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Inc Trust 2004 Top14)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the ~~related Serviced~~ WestShore Plaza Companion Loan if in connection with a the Loan Pair) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2003-~~C12~~TOP12, the holder of ~~any Serviced~~ the WestShore Plaza Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of ~~any~~ the Loan Pair, the holder of the ~~related Serviced~~ WestShore Plaza Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ the WestShore Plaza Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer or the Special Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for the Xxxxxxx Xxxx Loan REMIC or REMIC I by the REO Property would not result in the imposition of a tax upon the Xxxxxxx Xxxx Loan REMIC or REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mort Sec Tru 2003-Top12)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole~~ Mortgage Loan and the holder of the related ~~Serviced~~ Companion Loan if in connection with a Loan Pair) in the name of ~~Midland Loan Services~~"Xxxxx Fargo Bank Minnesota, ~~a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S. Bank National Association~~N.A., as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2002-~~C12~~HQ, the holder of any ~~Serviced~~ Companion Loan and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of ~~any~~ the A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note and the Trust as a collective ~~whole,~~ whole and in the case of ~~any~~ the Loan Pair, the holder of the related ~~Serviced~~ Companion Loan and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B Note or ~~a Serviced~~ Companion Loan) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep Series 2002-Hq)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders (and the holder of the related B Note if in connection with an A/B ~~Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair~~Mortgage Loan) in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2001-~~C12, the holder of any Serviced Companion Loan~~ TOP5 and the holder of any B Note as their interests may appear [name of Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the ~~Collection~~ Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and prohibitions of this Agreement and any applicable consultation rights of the ~~terms and conditions~~ holder of ~~any~~ the related ~~Intercreditor Agreement~~B Note relating to an A/B Mortgage Loan, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of ~~any~~ the A/B ~~Whole~~ Mortgage Loan, the holder of the related B Note ~~and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan~~ and the Trust as a collective whole), and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (~~i) preserve~~ i)preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (~~ii) avoid~~ ii)avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulation Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust (and, if applicable, the holder of a B ~~Note or a Serviced Companion Loan~~Note) pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master ~~Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep for Series 2001-Top)

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property ~~one or more accounts~~ an account held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2000-~~C12, the holder~~ WF1 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the ~~Master~~ Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the ~~Master~~ Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding.176 (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may ~~advance from its own funds~~ request that the Servicer make Servicing Advances (which the Servicer shall make, subject to Section 4.4) to pay for the following ~~items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(e))~~items, to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and, to the extent necessary to comply with the REMIC Provisions, capital~~ expenditures). (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use reasonable best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the ~~Master Servicer or the Special~~ Servicer as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the ~~Master~~ Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Paying Agent, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (f) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;; 178 (iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten ~~(10)~~ percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (iv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

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

Operation of REO Property. (a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders ~~(and the holder of the related B Note if in connection with an A/B Whole Loan and the holder of the related Serviced Companion Loan if in connection with a Loan Pair)~~ in the name of ~~Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer on behalf of U.S.~~ "LaSalle Bank National Association, as Trustee for the ~~benefit of the~~ Holders of ~~Mxxxxx Sxxxxxx Bank of America Mxxxxxx Lxxxx Trust 2013-C12,~~ Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc Commercial Mortgage Pass-Through ~~Certificates,~~ Certificates Series ~~2013~~2000-~~C12, the holder~~ LIFE1 [name of ~~any Serviced Companion Loan and the holder of any B Note as their interests may appear~~ Property Account]" (each, an “"REO Account”"), which shall be an Eligible Account. Amounts in any REO Account shall be invested in Eligible Investments. The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Account within two ~~(2)~~ days of ~~receipt of properly identified funds~~receipt. The Special Servicer shall account separately for funds received or expended with respect to each REO Property. All funds in each REO Account may be invested only in Eligible ~~Investments at the risk of the Special Servicer~~Investments. The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof. (b) On or before each Special Servicer Remittance Date, the Special Servicer shall withdraw from each REO Account and ~~remit to~~ deposit in the ~~Master Servicer for deposit into the Collection~~ Certificate Account, the REO Income received or collected during the Collection Period immediately preceding such Special Servicer Remittance Date on or with respect to the related REO ~~Properties~~Properties and reinvestment income thereon; ~~provided~~ provided, however, that ~~(i)~~ the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in the REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses. The Special Servicer shall notify the Master Servicer of all such ~~remittances~~ deposits (and the REO Properties to which the deposits relate) made into the Collection Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional Special Servicing Compensation any interest or net reinvestment income earned on funds deposited in the REO Certificate Account. The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the REO Account, out of its own funds immediately as realized; provided that, such investment losses shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the Person that made the relevant investment. If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from the REO Account, any provision herein to the contrary notwithstanding. (c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to ~~Section 10.3~~ the specific requirements and ~~the terms and conditions~~ prohibitions of ~~any related Intercreditor~~ this Agreement, to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust (and in the case of any A/B Whole Loan, the holder of the related B Note and the Trust as a collective whole, and in the case of any Loan Pair, the holder of the related Serviced Companion Loan and the Trust as a collective whole)Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust ~~subject to Sections 4.4~~ in accordance with Section 4.6(e)), to the extent such amounts cannot be paid from REO Income: (i) all insurance premiums due and payable in respect of such REO Property; (ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and (iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital ~~improvements and~~expenditures); (iv) Notwithstanding the above, the Special Servicer shall pay for such items if, but only if, in the Special Servicer's good faith reasonable business judgment, such amounts will be recoverable from (i) proceeds received in respect of such REO Property prior to the ~~extent necessary~~ final liquidation of such REO Property or (ii) Liquidation Proceeds, subject to ~~comply with~~ the ~~REMIC Provisions, capital expenditures)~~provisions of Section 4.4 hereof. (d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “"foreclosure property” " under the REMIC Provisions or (ii) avoid the imposition of a tax on “"income from nonpermitted assets” " within the meaning of the REMIC Provisions, shall use its best efforts to contract with any Independent Contractor for the operation and management of the REO Property, provided that: (i) the terms and conditions of any such contract shall not be inconsistent herewith; (ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury ~~Regulation~~ Regulations Section 1.856-4(b)(5); (iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account; (iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property; (v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the ~~Applicable Control Party,~~ Operating Adviser and a Nondisqualification ~~Opinion,~~ Opinion must be obtained; and (vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property. The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust ~~(and, if applicable, the holder of a B Note or a Serviced Companion Loan)~~ pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of a Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO ~~Property (or if not available from amounts on deposit in the related REO Account, shall be an Additional Trust Expense)~~Property. To the extent that the income from the REO Property is insufficient, such fees shall be advanced ~~by the Master Servicer or the Special Servicer~~ as a Servicing Advance, subject to the provisions of Section 4.4 ~~and Section 4.6(e)~~ hereof. (e) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “"income from nonpermitted assets” " within the meaning of Section 860F(a)(2) of the Code or any “"net income from foreclosure property” " which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s 's sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders. The Special Servicer shall notify the Trustee, the ~~Certificate Administrator~~ Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the ~~Certificate Administrator~~ Paying Agent with all information for the ~~Certificate Administrator~~ Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request ~~from~~ by the ~~Certificate Administrator~~Trustee, pay from such account to the ~~Certificate Administrator~~ Paying Agent the amount of the applicable tax. The ~~Certificate Administrator~~ Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer. . (i) Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not: (iii) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property; (iiiii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property; (~~iii~~iv) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ~~ten (10)~~ thirty percent of the construction of such building or other improvement was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or (ivv) ~~Directly Operate~~operate, other than through an Independent Contractor, or allow any other Person to ~~Directly Operate~~operate, other than through an Independent Contractor, the REO Property on any date more than ~~ninety (90)~~ 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s 's sole expense to the effect that such action will not cause such REO Property to fail to qualify as “"foreclosure property” " within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel. (f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not have any obligations with respect to an REO Property that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Series 2000 Life1)

Common use of Operation of REO Property Clause in Contracts