Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds from the Collection Account for the following purposes: (i) to effect the Remittance to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on deposit in the Collection Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below; (ii) to pay itself any Servicing Fees and additional Servicing Compensation earned hereunder; (iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments; (iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdiction; (v) to withdraw any funds deposited in the Collection Account that were not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulations; and (vi) to clear and terminate the Collection Account upon the termination of this Agreement with any amounts on deposit therein being paid as directed by the Servicer. (b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis. (c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer. (d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Mortgage Loan Subservicing Agreement (Remodelers Investment Corp)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause Trustee may, from time to be withdrawn funds time, make withdrawals from the Collection Account Account, subject to the conditions (including the receipt of directions from the Servicer) and for the following purposespurposes set forth in this Agreement, including the following:
(i) to effect make deposits into the Remittance to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on deposit in the Collection Certificate Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowSection 4.02;
(ii) to pay itself any Servicing Fees and additional Servicing Compensation earned hereunderreimburse or indemnify the Servicer to the extent required or permitted by Section 7.03;
(iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds accrued and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentsunpaid Servicing Fees;
(iv) to withdraw any amount pay the Transferor amounts received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to respect of Defective Home Equity Loans during the United States Bankruptcy Code Collection Period in accordance with a finalwhich such Defective Home Equity Loans were replaced, nonappealable order substituted for or repurchased or which were otherwise reflected in the calculation of a court having competent jurisdictionthe related Transfer Deposit Amount;
(v) to withdraw pay the Transferor any remaining funds in the Collection Account after terminating the Collection Account in connection with the termination of the Trust in accordance with Section 10.01;
(vi) to pay the Transferor an amount equal to the excess of the amount on deposit in the Collection Account over the amount required to be distributed on the following Distribution Date pursuant to Section 5.01; and
(vii) to pay the Transferor any Transfer Deposit Amount, or portion thereof, that is no longer required to be deposited in the Collection Account when no Transfer Deficiency exists.
(b) Any provision herein to the contrary notwithstanding, if the Servicer deposits into the Collection Account any amount not required to be deposited therein pursuant to Section 3.02(b), the Servicer may at any time instruct the Trustee to withdraw such amount from the Collection Account and to pay such amount to the Servicer. The Servicer shall deliver an Officer's Certificate to the Trustee which states that it is submitted pursuant to this subsection (b) and specifies any amounts deposited in error. If the facts set forth on the face of such Officer's Certificate indicate that amounts deposited were not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulations; and
(vi) to clear and terminate into the Collection Account upon pursuant to Section 3.02(b), the termination of this Agreement with any amounts on deposit therein being paid as directed by Trustee shall withdraw such amount and pay over such amount to the Servicer.
(bc) All remittances of funds by Subservicer Any provision herein to the contrary notwithstanding, the Servicer pursuant may debit against any amount required to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in deposited into the Collection Account for a period in excess of twelve (12) months and cash any amount previously deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in into the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer respect of any payments by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be Mortgagors made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on checks subsequently returned for insufficient funds or before the Remittance Date in the month following the month in which such discrepancy is identifiedother reason for non-payment.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inves Inc Providian Home Eq Ln Tr 1999-1)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Certificate Administrator for deposit in the Collection Lower-Tier Distribution Account, the Interest Reserve Account that are attributable and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account pursuant to SUBSECTION 4.03(iiSection 4.01(a)(i), any amounts deposited pursuant to SUBSECTION 4.03(iiiSection 4.06(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv)Section 3.23 of this Agreement, plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer or the Trustee, (A) for Advances made thereby with respect to Mortgage Loans that are not part of the Split-Loan (other than Workout-Delayed Reimbursement Amounts) and any Servicing Fees related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and additional Servicing Compensation earned hereunderany related Advance Interest Amounts), the Master Servicer’s right to reimburse any such Person pursuant to this clause (ii)(A) being limited to late collections (including cure payments by the Companion Loan Holder) of the particular item which was the subject of the related Advance, Penalty Charges and Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made; if applicable; provided that (x) prior to the time any Advance is reimbursed, Advance Interest Amounts may be reimbursed solely from Penalty Charges collected on the related Mortgage Loan, and (y) at the time any Advance (other than Workout Delayed Reimbursement Amounts) is reimbursed, Advance Interest Amounts on such reimbursed Advance shall be payable first from Penalty Charges collected on the related Mortgage Loan, and, to the extent such Penalty Charges are insufficient, then from general collections on deposit in the Collection Account, (B) for Advances and any related Advance Interest Amounts (or portion thereof) that have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination to the extent not recovered from the Split-Loan Custodial Account and Advance Interest Amounts thereon, first, out of the principal portion of general collections on the Mortgage Loans and REO Properties, and second, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any election in its sole discretion to defer reimbursement thereof pursuant to Section 3.26 of this Agreement, out of other collections on the Mortgage Loans and REO Properties and, (C) for Workout-Delayed Reimbursement Amounts and Advance Interest Amounts thereon, first, out of the principal portion of the general collections on the Mortgage Loans and REO Properties, net of such amounts being reimbursed pursuant to (B) above and second, upon a determination by the Master Servicer or the Trustee, as applicable, that a Workout-Delayed Reimbursement Amount is a Nonrecoverable Advance, in the same manner as Nonrecoverable Advances may be reimbursed;
(iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments[Reserved];
(iv) to withdraw any amount received pay on or before each Master Servicer Remittance Date to the Master Servicer and/or the holder of the Excess Servicing Fee Right (if different from an Obligor the Master Servicer) and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee with respect to Mortgage Loans that is recoverable and sought are not part of the Split-Loan (to the extent not otherwise required to be recovered as a voidable preference by a trustee applied against Prepayment Interest Shortfalls), and Special Servicing Compensation (if any), respectively, in bankruptcy pursuant respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan and to pay from time to time to the United States Bankruptcy Code Master Servicer in accordance with a final, nonappealable order Section 3.07(b) of a court having competent jurisdiction;
(v) to withdraw this Agreement any interest or investment income earned on funds deposited in the Collection Account and, in the case of the Special Servicing Fee, from general collections; provided that were with respect to the Split-Loan, such Special Servicing Fee with respect to the related Mortgage Loan shall first be reimbursed pursuant to Section 3.06A(a)(iv) of this Agreement and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (iv);
(v) in accordance with Section 2.03 of this Agreement, to reimburse the Trustee, the Certificate Administrator and/or the Special Servicer, on a pari passu basis out of general collections on the Mortgage Loans and related REO Properties for any unreimbursed expense reasonably incurred by the Trustee, the Certificate Administrator or the Special Servicer in connection with the enforcement of a Mortgage Loan Seller’s obligations under Section 6(e) of the Mortgage Loan Purchase Agreement, together with interest thereon at the Advance Rate, but only to the extent that such expenses are not otherwise reimbursable;
(vi) to pay out of general collections on the Mortgage Loans and related REO Properties, for costs and expenses incurred by the Trust Fund with respect to the Mortgage Loans and related REO Properties pursuant to Section 3.04(a) and Section 3.10(e) of this Agreement and to pay Liquidation Expenses out of related Liquidation Proceeds pursuant to Section 3.11 of this Agreement (provided that with respect to each Split-Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(vi) of this Agreement to the extent related to the Split-Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vi));
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Certificate Administrator, the Special Servicer, the Operating Advisor or the Depositor, as applicable and on a pari passu basis, for unpaid Additional Trust Fund Expenses (other than Advance Interest Amounts), Certificate Administrator Fees (including that portion of the Certificate Administrator Fees that represents the unpaid Trustee Fees, which are payable to the Trustee), unpaid Servicing Fees (but only if the Mortgage Loan has been liquidated or a Final Recovery Determination has been made with respect thereto), unpaid Special Servicing Compensation, unpaid Operating Advisor Fees, unpaid Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor) and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a), Section 3.08(b), Section 3.10, Section 3.12(c), Section 3.16(a), Section 6.03, Section 7.04, Section 8.05(a), Section 8.05(b), Section 8.05(d) or Section 11.07 of this Agreement, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement (provided that with respect to each Split-Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(vii) of this Agreement to the extent related to the Split-Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vii));
(viii) to transfer to the Certificate Administrator for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Certificate Administrator to be necessary to pay any applicable federal, state or local taxes imposed on either Trust REMIC under the circumstances and to the extent described in Section 4.05 of this Agreement;
(ix) to withdraw any amount deposited into the Collection Account that was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; andor
(vix) to clear and terminate the Collection Account upon the termination pursuant to Section 9.01 of this Agreement Agreement. If and to the extent that the Master Servicer has reimbursed itself pursuant to clauses (a)(ii), (a)(vi) or (a)(vii) above for an expense with respect to the Split-Loan that represents the Companion Loan’s allocable share of such cost or expense, the Master Servicer shall use efforts consistent with the Servicing Standard to collect such amounts from the Companion Loan Holder and deposit all such amounts collected from or on behalf of the Companion Noteholder into the Collection Account. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(xi) above. The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Operating Advisor, the Trustee and the Certificate Administrator, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of an officer of the Special Servicer, an officer of the Operating Advisor or a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor), the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is entitled (unless such payment to the Special Servicer, the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis. The Trustee, the Certificate Administrator, the Operating Advisor, the Depositor, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Certificate Administrator Fees (including that portion of the Certificate Administrator Fee that represents the Trustee Fee, which is payable to the Trustee), Special Servicing Compensation, Advances, Advance Interest Amounts, Operating Advisor Fees, Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fees are actually received from the related Mortgagor(s)) and their respective expenses hereunder (including without limitation Additional Trust Fund Expenses) to the extent such fees, expenses and indemnity amounts are to be reimbursed or paid from amounts on deposit therein being in the Collection Account pursuant to this Agreement (and to have such amounts paid as directed directly to third party contractors for any invoices approved by the Trustee, the Master Servicer or the Special Servicer, as applicable).
(b) All remittances The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account any and all amounts received by the Certificate Administrator in accordance with Section 3.06(a)(i) of funds by Subservicer this Agreement. If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited therein pursuant to the provisions of this Agreement shall be made by wire transfer (including, without limitation, Section 3.06(a)(i) of immediately available funds. The Subservicer shall not retain any cash or investment in this Agreement), then the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-inCertificate Administrator shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Certificate Administrator has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy No. [(___) ___-____] (or such alternative number provided by the ServicerMaster Servicer to the Certificate Administrator in writing) and by telephone at telephone No. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer [(___) ___-____] (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Certificate Administrator in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In day; provided, however, that the case of a Servicer error, Master Servicer will correct pay the error Certificate Administrator interest on or before such late payment at the Remittance Date in prime rate until such late payment is received by the month following the month in which such discrepancy is identifiedCertificate Administrator.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CCRE Commercial Mortgage Securities, L.P.)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account, the amounts required to be deposited in the Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.27(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and the Special Servicer for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees and additional Servicing Compensation earned hereundersuch Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, (y) with respect to P&I Advances, any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d), or (z) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense to the Servicer, the Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances (to the extent not reimbursed from Default Interest), and (B) to pay to the Servicer, Special Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances (provided that in the collections from case of both (A) and (B), the related Loan, for which Trustee and the Fiscal Agent shall have priority with respect to such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentspayments);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Servicer Remittance Date to the Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding month, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account) (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following the date of such investment and shall not be sold Upper-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerLower-Tier REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Comm Mort Pass THR Cer Ser 1997-D4)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Certificate Account that are attributable the amounts required to be deposited in the repurchase of any Loan Certificate Account pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowSection 4.06;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent and the Master Servicer for Advances (PROVIDED, that the Trustee and Fiscal Agent shall have priority with respect to such payment or reimbursement), the Master Servicer's right to reimburse any Servicing Fees and additional Servicing Compensation earned hereundersuch Person pursuant to this clause (ii) being limited to either (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent that Master Servicer, the collections from Trustee or the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from Fiscal Agent the related Obligor in repayment of such Expense Advance Interest Amount relating to P&I Advances, but excluding and (B) to pay to the Master Servicer, the Trustee or the Fiscal Agent any Monthly PaymentsAdvance Interest Amounts not relating to any P&I Advances (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such payments);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Remittance Date to the Master Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation, respectively, to be recovered paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan, and in the case of the Special Servicing Fee and Principal Recovery Fee, as a voidable preference by a trustee provided in bankruptcy pursuant Section 3.12, and to pay from time to time to the United States Bankruptcy Code Master Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account (the Master Servicer may rely on a finalcertification of the Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv)); PROVIDED, nonappealable order of a court having competent jurisdictionHOWEVER, that the Servicing Compensation other than the Servicing Fee and the Special Servicing Compensation other than the Special Servicing Fee shall be paid to the Master Servicer and the Special Servicer, as applicable, only to the extent received, in accordance with Section 3.12;
(v) to remit to the Certificate Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the applicable Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(b) or Section 3.18 all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Compensation, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to any provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to reimburse itself, the Special Servicer, the Depositor or the Trustee, as the case may be, for any unreimbursed expenses reasonably incurred by such Person in respect of any Breach or Defect giving rise to a repurchase obligation of any Mortgage Loan Seller under Section 7 of the related Mortgage Loan Purchase Agreement, including, without limitation, any expenses arising out of the enforcement of the repurchase obligation, each such Person's right to reimbursement pursuant to this clause (viii) with respect to any Mortgage Loan being limited to that portion of the Purchase Price paid for such Mortgage Loan that represents such expense in accordance with clause (iv) of the definition of Repurchase Price;
(ix) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on REMIC I, REMIC II or REMIC III under the circumstances and to the extent described in Section 4.05;
(x) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vixi) to clear and terminate the Collection Account pursuant to Section 9.01. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to clauses (ii)-(viii) and (x) above. The Master Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(viii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Master Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash the Trustee, the Master Servicer or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date local taxes imposed on any of such investment and shall not be sold REMIC I, REMIC II or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerREMIC III.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Icifc Secured Assets Corp)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall Servicer may, from time to time, withdraw or cause to be withdrawn funds from the Collection Account for the following purposes:
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account that are attributable the amounts required to the repurchase of any Loan be so remitted pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iiiSections 3.04(b) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.04(d), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay reimburse itself for (x) Advances, Timing Advance and Servicing Advances; the Servicer's right to reimburse itself pursuant to this subclause (ii) being limited to amounts received on the related Mortgage Loan which represent payments of (a) interest respecting which any such Advance was made and (b) Condemnation Proceeds, Insurance Proceeds or Liquidation Proceeds respecting which any such Advance, Servicing Fees and additional Servicing Compensation earned hereunder;Advance or Timing Advance was made or (y) any unreimbursed Advances or Timing Advances made pursuant to Section 4.07(b) to the extent of funds held in the Collection Account for future distribution that were not included in Available Funds for the preceding Distribution Date
(iii) to pay reimburse itself for unreimbursed Servicing Advances, any unpaid Servicing Fees and for unreimbursed Expense Timing Advances and Advances to the extent that such amounts are deemed to be Nonrecoverable Advances, and to reimburse itself for such amounts to the collections extent that such amounts are nonrecoverable from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment disposition of such Expense Advances, but excluding any Monthly PaymentsREO Property pursuant to Section 3.03 or Section 3.13 hereof;
(iv) to withdraw reimburse itself for any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy amounts paid pursuant to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdictionSection 3.03 (and not otherwise previously reimbursed);
(v) to withdraw pay to itself as servicing compensation (a) any interest earned on funds deposited in the Collection Account that were not required (all such interest to be deposited therein withdrawn monthly not later than each Servicer Remittance Date) and (such b) the Servicing Fee from that portion of any payment or recovery as Servicing Compensationto interest to a particular Mortgage Loan to the extent not retained pursuant to Section 3.04(ii);
(vi) to pay or were deposited therein in error reimburse itself or that constituted Insurance Proceeds the FHA seeks any other party for any amounts payable or paid pursuant to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found Section 3.26 or Section 6.03 (and not to conform to FHA Regulationsotherwise previously reimbursed); and
(vivii) to clear and terminate the Collection Account upon the termination of this Agreement with any amounts on deposit therein being paid as directed by Agreement. The foregoing requirements for withdrawal from the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement Collection Account shall be made by wire transfer of immediately available fundsexclusive. The Subservicer In the event the Servicer shall not retain any cash or investment deposit in the Collection Account for a period in excess of twelve (12) months and cash any amount not required to be deposited therein shall be considered withdrawn pursuant to subsection (a) above therein, it may at any time withdraw such amount from the Collection Account, any provision herein to the Servicer on a first-in, first-out basiscontrary notwithstanding.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bond Securitization LLC)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on Owner the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on deposit in the Collection Account that are attributable required to the repurchase of any Loan be remitted pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowSection 4.01;
(ii) to pay or reimburse the Fiscal Agent, the Custodian or the Servicer (in the order provided in Section 6.02) for Property Advances, the right of the Servicer, the Custodian or the Fiscal Agent to reimburse itself pursuant to this clause (ii) being limited to either (x) any Servicing Fees and additional Servicing Compensation earned hereundercollections in excess of amounts necessary to make the Monthly Payment on or in respect of the particular Mortgage Loan or REO Property respecting which each such Property Advance was made, or (y) any other amounts in the Collection Account in the event that such Property Advances have been deemed to be Nonrecoverable Advances in accordance with Section 4.02 hereof;
(iii) to pay itself any unreimbursed Expense Advances to the extent that Fiscal Agent, the collections from Custodian or the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from Servicer (in the related Obligor order provided in repayment of such Expense Advances, but excluding any Monthly PaymentsSection 6.02) the Property Advance Interest Amount (subject to the reimbursement limitations set forth in (ii) above);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Remittance Date to the Servicer and sought the Custodian, as applicable, as compensation, the unpaid Servicing Fee and Custodian Fee in respect of such Remittance Date, to be recovered paid from interest received on the related Mortgage Loans (except with respect to the Servicing Fee for any Specially Serviced Mortgage Loan, which shall be paid to the Servicer as a voidable preference by a trustee in bankruptcy pursuant Property Advance (and reimbursable with interest thereon at the Property Advance Rate) to the United States Bankruptcy Code extent interest on the related Mortgage Loan has not been received in accordance with a finalorder to pay such fee), nonappealable order of a court having competent jurisdictionand to pay from time to time, to the Servicer any interest or investment income earned on funds deposited in the Collection Account, and to pay to the Servicer as additional Servicing Compensation any other amounts constituting Servicing Compensation (including any investment income earned on funds on deposit in the Rent Escrow Account which were transferred to the Collection Account and not paid to the Servicer);
(v) to withdraw pay on or before each Remittance Date to the purchaser of any Specially Serviced Mortgage Loan or REO Property, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by such purchaser, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vi) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Custodian or the Fiscal Agent, as applicable, for unpaid items incurred by such Person pursuant to the last sentence of Section 3.10(b), Section 3.12(d), Section 3.17 (b) and (c), Section 3.18(a), Section 3.25, Section 5.03, Section 6.02 or Section 7.04(b) and (d), or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Owner, in each case only to the extent reimbursable under such Section, it being acknowledged that (x) this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement and (y) in the event that there are insufficient funds deposited in the Collection Account to permit such reimbursement or payment, the Owner shall remit the necessary funds to Servicer for deposit in the Collection Account within ten (10) Business Days after the Owner's receipt of an itemized invoice therefor;
(vii) on or before each Remittance Date, to deposit into each Maintenance Reserve Account the related Maintenance Deposit Amounts for each Mortgage Loan to the extent of funds available therefor;
(viii) to withdraw any amount deposited into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(viix) to clear and terminate the Collection Account upon the termination of this Agreement with Agreement. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii) - (vii) above. The Servicer shall pay to the Custodian and the Fiscal Agent from the Collection Account (to the extent permitted by clauses (i)-(viii) above) amounts permitted to be paid to the Custodian or the Fiscal Agent therefrom, promptly upon receipt of a certificate of a Responsible Officer of the Custodian describing the item and amount to which the Custodian or the Fiscal Agent is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Custodian, the Fiscal Agent and the Servicer shall in all cases have a right prior to the Owner and NationsBank to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of Servicing Fees, Custodian Fees and Property Advances (subject to the limitation set forth in Section 3.06(ii) above) and any expenses (including Property Advance Interest Amounts subject to the limitations set forth in Section 3.06(ii) above)) hereunder to the extent such expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash the Custodian or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsServicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicerapplicable).
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Interim Servicing Agreement (Capital Lease Funding Inc)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account, the amounts required to be deposited in the Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.27(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and the Special Servicer for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees and additional Servicing Compensation earned hereundersuch Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, (y) with respect to P&I Advances, any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d), or (z) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent that Servicer, the collections from Trustee or the related LoanFiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, for which such Expense Advances were madeSpecial Servicer, have been received by Subservicer, including Trustee or Fiscal Agent any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advance Interest Amounts not relating to any P&I Advances, but excluding in each case, first, out of any Monthly Paymentscollected Default Interest (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such payments);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Servicer Remittance Date to the Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding month, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account) (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following the date of such investment and shall not be sold Upper-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerLower-Tier REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Comm Mort Pass THR Cer Ser 1997-D4)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account that are attributable and the Excess Interest Distribution Account, the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.01(a)(i), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(c), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below3.25 and 3.05(d), less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent for Advances and any Servicing Fees related Advance Interest Amounts (provided that the Trustee and additional Servicing Compensation earned hereunderthe Fiscal Agent shall have priority with respect to such payment or reimbursement, and, provided further, that in the event the Special Servicer is required pursuant to the terms of Sections 3.22(e) and 4.06(h) to make Advances, the Special Servicer shall have priority over the Master Servicer with respect to the payment or reimbursement of any such Advances and any related Advance Interest Amounts), the Master Servicer's right to reimburse any such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments;[Reserved]
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Master Servicer Remittance Date to the Master Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Master Servicer in accordance with a final, nonappealable order of a court having competent jurisdictionSection 3.07(b) any interest or investment income earned on funds deposited in the Collection Account;
(v) to pay on or before each Distribution Date to the Seller, the applicable Responsible Party or any other applicable Person as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(c), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vi) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer, the Seller or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section 3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC, Middle-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(viii) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(viix) to clear and terminate the Collection Account pursuant to Section 9.
01. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vi) above. The Master Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom as set forth above, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Master Servicer may conclusively rely on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts and their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available fundsthe Trustee, the Master Servicer or the Special Servicer, as applicable). The Subservicer Trustee shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account any and all amounts received by the Trustee in accordance with Section 3.06(i). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not retain any cash or investment have delivered to the Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account for a period in excess of twelve (12) months and cash the Excess Interest Distribution Account the amounts required to be deposited therein shall be considered withdrawn pursuant to subsection (a) above to Section 3.06(i), then the Servicer on a first-inTrustee shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Trustee has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the ServicerMaster Servicer to the Trustee in writing) and by telephone at telephone no. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer (215) 300-0000 (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Trustee in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identifiedday.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Ii Series 1997-Gl I)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on Trustee for deposit the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on deposit required to be deposited in the Collection Distribution Account, the Interest Reserve Account, the Default Interest Distribution Account that are attributable to and the repurchase of any Loan Excess Interest Distribution Account, pursuant to SUBSECTION 4.03(iiSections 3.05 (c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.05(e), 3.05(f) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below4.06;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and the Special Servicer for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees and additional Servicing Compensation earned hereundersuch Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances or any Advance Interest Amount have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent that Servicer, the collections from Trustee or the related LoanFiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, for which such Expense Advances were madeSpecial Servicer, have been received by Subservicer, including Trustee or Fiscal Agent any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advance Interest Amounts not relating to any P&I Advances, but excluding in each case, first, out of any Monthly Paymentscollected Default Interest (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such payments);
(iv) to withdraw pay on or before each Servicer Remittance Date to the Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any, including any amount received from an Obligor that is recoverable and sought Workout Fee due to a previous Special Servicer pursuant to Section 3.12(c)), respectively, in respect of the immediately preceding month, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer or the Special Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account) (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Mortgage Loan Seller with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation, and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, 3.28, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(viii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted local taxes imposed on the related Remittance DateUpper-Tier REMIC, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on Middle-Tier REMIC or before the Remittance Date in the month following the month in which such discrepancy is identifiedLower-Tier REMIC.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Deutsche Mortgage & Asset Receiving Corp)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Interest Reserve Account, Excess Interest Distribution Account that are attributable and the Repurchase Price Return of Premium Distribution Account, the amounts required to be deposited in the repurchase Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account and the Repurchase Price Return of any Loan Premium Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.06, 3.27(a), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(b), 3.05(d) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances, and additional Servicing Compensation earned hereunderany Property Advances made by the Lead Lender with respect to the Other Note required to be, but not reimbursed by the Other Trust Fund as provided in Section 3.31, or any Advance Interest Amount have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent that Servicer, the collections from Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances, in each case, after application of any Default Interest collected in the related LoanCollection Period to reimbursement of the Advance Interest Amounts out of general collections on the Mortgage Loans and any REO Properties (provided that in the case of both (A) and (B), for which the Trustee and the Fiscal Agent shall have priority with respect to such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentspayments);
(iv) to withdraw pay on or before each Servicer Remittance Date to the Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any) and any amount received from an Obligor that is recoverable and sought other servicing or special servicing compensation, as applicable, in respect of the related Collection Period, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from amounts received or advanced on the related Mortgage Loan (or if not so received or advanced, from other funds on deposit in the Collection Account), and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee for such Distribution Date to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the appropriate Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Trustee Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section 3.17(a), (b) and (c), Section 3.31(d), Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or any Loan REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (i)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following Upper-Tier REMIC, the date of such investment and shall not be sold Lower-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicerany Loan REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Com Mor Ps THR Cert Ser 1999-C2)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class T Distribution Account, the Interest Reserve Account that are attributable and the Excess Interest Distribution Account, the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Class T Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.01(a)(i), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(c), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below3.25 and 3.05(d), less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent for Advances and any Servicing Fees related Advance Interest Amounts (provided that the Trustee and additional Servicing Compensation earned hereunderthe Fiscal Agent shall have priority with respect to such payment or reimbursement), the Master Servicer's right to reimburse any such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) to pay itself any unreimbursed Expense Advances on or before each Master Servicer Remittance Date to the extent that Master Servicer and the collections Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan, for which such Expense Advances were made, have been received by Subservicer, including and to pay from time to time to the Master Servicer in accordance with Section 3.07(b) any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from interest or investment income earned on funds deposited in the related Obligor in repayment of such Expense Advances, but excluding any Monthly PaymentsCollection Account;
(iv) to withdraw pay on or before each Distribution Date to the Depositor, the Mortgage Loan Seller or any amount received from an Obligor other applicable Person as the case may be, with respect to each Mortgage Loan or REO Property that is recoverable and sought to be recovered as a voidable preference has previously been purchased or repurchased by a trustee in bankruptcy it pursuant to Section 2.03(d), Section 3.18 or Section 9.01, all amounts received thereon during the United States Bankruptcy Code in accordance with a final, nonappealable order related Collection Period and subsequent to the date as of a court having competent jurisdictionwhich the amount required to effect such purchase or repurchase was determined;
(v) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section 3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (v) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vi) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(vii) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(viviii) to clear and terminate the Collection Account pursuant to Section 9.01. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(v) above. The Master Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom as set forth above, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Master Servicer may conclusively rely on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts and their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available fundsthe Trustee, the Master Servicer or the Special Servicer, as applicable). The Subservicer Trustee shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Class T Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account any and all amounts received by the Trustee in accordance with Section 3.06(i). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not retain any cash or investment have delivered to the Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class T Distribution Account, the Interest Reserve Account for a period in excess of twelve (12) months and cash the Excess Interest Distribution Account the amounts required to be deposited therein shall be considered withdrawn pursuant to subsection (a) above to Section 3.06(i), then the Servicer on a first-inTrustee shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Trustee has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the ServicerMaster Servicer to the Trustee in writing) and by telephone at telephone no. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer (000) 000-0000 (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Trustee in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identifiedday.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp Series 1997 Ll I)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account that are attributable and the Deferred Interest Distribution Account, the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Class Q Distribution Account and the Deferred Interest Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.01(a), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(c) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(d), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer or the Trustee for Advances and any Servicing Fees related Advance Interest Amounts to the extent not paid from Default Interest (provided that the Trustee shall have priority with respect to such payment or reimbursement), the Master Servicer's right to reimburse any such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination; provided, however, that, with respect to the Magellan Apartment Pool Loan, which provides for a grace period in connection with Monthly Payments, the Master Servicer or Trustee as applicable, shall only be entitled to interest on any P&I Advance made with respect to such Mortgage Loan, from the date such grace period expires and additional Servicing Compensation earned hereunderonly to the extent that the applicable Monthly Payment is not received prior to the expiration of such grace period;
(iii) to pay itself any unreimbursed Expense Advances on or before each Master Servicer Remittance Date to the extent that Master Servicer and the collections Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan, for which such Expense Advances were made, have been received by Subservicer, including and to pay from time to time to the Master Servicer in accordance with Section 3.07(b) any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from interest or investment income earned on funds deposited in the related Obligor in repayment of such Expense Advances, but excluding any Monthly PaymentsCollection Account;
(iv) to withdraw pay on or before each Distribution Date to the Depositor, MSMC or any amount received from an Obligor other applicable Person as the case may be, with respect to each Mortgage Loan or REO Property that is recoverable and sought to be recovered as a voidable preference has previously been purchased or repurchased by a trustee in bankruptcy it pursuant to Section 2.03(c), Section 3.18 or Section 9.01, all amounts received thereon during the United States Bankruptcy Code in accordance with a final, nonappealable order related Collection Period and subsequent to the date as of a court having competent jurisdictionwhich the amount required to effect such purchase or repurchase was determined;
(v) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer or the Depositor, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Sections 8.05(a), (b) and (d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (v) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vi) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(vii) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein therein;
(such as viii) with respect to the first Interest Accrual Period, to withdraw an amount equal to the Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds Fee for the FHA seeks to reclaim period commencing on the grounds that a Loan that was Cut-Off Date and ending on the subject of an FHA Claim is found not day immediately prior to conform the Closing Date, and to FHA Regulationsremit such amount to the Depositor; and
(viix) to clear and terminate the Collection Account pursuant to Section 9.
01. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(v) above. The Master Servicer shall pay to the Trustee or the Special Servicer from the Collection Account amounts permitted to be paid to the Trustee or the Special Servicer therefrom as set forth above, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Master Servicer may conclusively rely on any such certificate and shall have no duty to recalculate the amounts stated therein. In addition, the Master Servicer shall promptly, upon receipt, pay the Depositor the amounts permitted to be paid to the Depositor pursuant to clause (viii) above. The Trustee, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts and their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available fundsthe Trustee, the Master Servicer or the Special Servicer, as applicable). The Subservicer Trustee shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Class Q Distribution Account and the Deferred Interest Distribution Account any and all amounts received by the Trustee in accordance with Section 3.06(i). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not retain any cash or investment have delivered to the Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account for a period in excess of twelve (12) months and cash the Deferred Interest Distribution Account the amounts required to be deposited therein shall be considered withdrawn pursuant to subsection (a) above to Section 3.06(i), then the Servicer on a first-inTrustee shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Trustee has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the ServicerMaster Servicer to the Trustee in writing) and by telephone at telephone no. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer (000) 000-0000 (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Trustee in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identifiedday.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Cap I Inc Comm Mort Pass THR Cer Ser 1998 Xl2)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall Servicer may, from time to time, withdraw or cause to be withdrawn funds from the Collection Account for the following purposes:
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account that are attributable (a) the amounts required to the repurchase of any Loan be so remitted pursuant to SUBSECTION 4.03(iiSection 3.04(b), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) belowthe amounts permitted to be so remitted pursuant to the first sentence of Section 3.04(d) or clause (ii) of the first sentence of the second paragraph of Section 4.07(b), less (c) the any amounts set forth in clauses required to be so remitted pursuant to Section 6.03 and (iid) through (vi) belowany amounts required to be so remitted pursuant to Section 8.05;
(ii) to pay reimburse itself for (a) Advances and Servicing Advances to the extent of amounts received on the related Mortgage Loan which represent payments of (x) principal and/or interest respecting which any such Advance was made or (y) Condemnation Proceeds, Insurance Proceeds or Liquidation Proceeds respecting which any such Servicing Fees Advance was made; or (b) any unreimbursed Advances or Servicing Advances to the extent of funds held in the Collection Account for future distributions that were not included in Available Funds for the preceding Distribution Date (provided, however, any funds so applied will be replaced by the Servicer by deposit in the Collection Account no later than one Business Day prior to the Distribution Date on which such funds are required to be distributed) and additional to reimburse itself for Advances and Servicing Compensation earned hereunderAdvances made in connection with the modification of a Mortgage Loan;
(iii) to pay reimburse itself for unreimbursed Servicing Advances, any unpaid Servicing Fees and for unreimbursed Expense Advances to the extent that such amounts are deemed to be Nonrecoverable Advances and to reimburse itself for such amounts to the collections extent that such amounts are nonrecoverable from the disposition of the related Loan, for which such Expense Advances were made, REO Property or have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentswritten-off pursuant to Section 3.13 hereof;
(iv) to withdraw reimburse itself for any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy amounts paid pursuant to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdictionSection 3.03 (and not otherwise previously reimbursed);
(v) to withdraw pay to itself as servicing compensation (a) any interest earned on funds deposited in the Collection Account that were not required (all such interest to be deposited therein withdrawn monthly not later than each Servicer Remittance Date) and (such b) the Servicing Fee from that portion of any payment or recovery as Servicing Compensationto interest to a particular Mortgage Loan to the extent not retained pursuant to Section 3.04(d);
(vi) to pay or were deposited therein reimburse itself for any amounts payable or paid pursuant to Section 6.03 (and not otherwise previously reimbursed) and to reimburse itself as set forth in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA RegulationsSection 9.01(c); and
(vivii) to clear and terminate the Collection Account upon the termination of this Agreement with any amounts on deposit therein being paid as directed by Agreement. The foregoing requirements for withdrawal from the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement Collection Account shall be made by wire transfer of immediately available fundsexclusive. The Subservicer In the event the Servicer shall not retain any cash or investment deposit in the Collection Account for a period in excess of twelve (12) months and cash any amount not required to be deposited therein shall be considered withdrawn pursuant to subsection (a) above therein, it may at any time withdraw such amount from the Collection Account, any provision herein to the Servicer on a first-in, first-out basiscontrary notwithstanding.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (C-Bass Mortgage Loan Asset Backed Certificates, Series 2007-Cb4)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance pay to the Servicer on or before 1:00 p.m. DallasTrustee, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on deposit in the Collection Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowTrustee Fee;
(ii) to pay itself any Servicing Fees and additional Servicing Compensation earned hereundertransfer on or before each Master Servicer Remittance Date to the Lower-Tier Distribution Account, the amount required to be deposited in the Distribution Account pursuant to Section 3.5(a);
(iii) to pay itself any unreimbursed Expense or reimburse (a) the Trustee or the Master Servicer, for Advances other than P&I Advances, together with Advance Interest thereon, to the extent that and at the collections from time payable or reimbursable pursuant to this Agreement and (b) the related LoanTrustee for expenses, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds disbursements and such other amounts received from the related Obligor in repayment advances pursuant to Section 8.5(b) of such Expense Advances, but excluding any Monthly Paymentsthis Agreement;
(iv) on each Determination Date to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to reimburse the United States Bankruptcy Code Trustee or the Master Servicer, for xxxxxxxxxxxx X&X Advances in accordance with a final, nonappealable order the provisions of a court having competent jurisdictionSection 3.22 together with interest thereon at the Advance Rate to the extent provided in that Section;
(v) to pay on each Determination Date (a) to the Master Servicer, as adjusted pursuant to Section 4.8, the aggregate unpaid Servicing Fees in respect of the immediately preceding Due Period; (b) to the Special Servicer, the Basic Fee and the aggregate unpaid Workout Fee in respect of such Due Period (but only out of collections on and proceeds of the related Mortgage Loans and REO Properties); and (c) to the Master Servicer and the Special Servicer, any unpaid Servicing Fees, Workout Fees in respect of any prior Due Period plus interest thereon at the Advance Rate;
(vi) to pay on or before each Determination Date to the Originator, the Master Servicer or the Special Servicer, as the case may be, with respect to each Mortgage Loan, Mortgage Certificate or REO Property that has previously been purchased or repurchased from the Trust Fund pursuant to Section 2.2, 2.3(d), 3.18, 4.6(b) or 9.1, all amounts received thereon during the immediately preceding Prepayment Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) at the direction of the Trustee to pay the expenses of the Trust Fund as specified herein and not otherwise provided for in this Section 3.6 and to pay, only from amounts otherwise distributable to Holders of Class R or Class LR Certificates, as the case may be, any federal, state or local taxes imposed on the Upper-Tier REMIC or Lower-Tier REMIC, respectively, pursuant to Section 4.6;
(viii) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) therein, including late fees and any other penalties or were deposited therein in error or that constituted Insurance Proceeds charges to be retained by the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulations; andDepositor;
(viix) to the extent not reimbursed pursuant to any other clause of this Section 3.6, to reimburse the Trustee, the Master Servicer and the Special Servicer for any expenses or other amounts reimbursable or payable to them under this Agreement, together with interest thereon to the extent provided in this Agreement;
(x) to clear and terminate the Collection Account pursuant to Section 9.1.; and
(xi) to make other payments authorized by this Agreement. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, and Mortgage Certificate by Mortgage Certificate basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (iii), (iv), (v) and (viii) above. The Master Servicer shall pay to the Special Servicer (or to third party contractors at the direction of the Special Servicer) or the Trustee from the Collection Account amounts permitted to be paid to the Special Servicer or the Trustee therefrom promptly upon receipt of a certificate of a Special Servicer Officer or a Responsible Officer of the termination Trustee, as the case may be, describing the item and amount to which the Special Servicer or the Trustee, as the case may be, is entitled. The Master Servicer may rely conclusively on any such certificate and shall have no duty to re-calculate the amounts stated therein. Each of the Special Servicer and the Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, and Mortgage Certificate by Mortgage Certificate basis, for the purpose of justifying any request made by it for any withdrawal from the Collection Account. The Trustee, the Master Servicer and the Special Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the payment of the Servicing Fee, the Trustee Fee, the Basic Fee and the Workout Fee, for the reimbursement of P&I Advances and Servicing Advances plus interest thereon at the Advance Rate, in each case to the extent such advances are determined to be Nonrecoverable Advances, and for reimbursement of their respective expenses hereunder (plus interest thereon to the extent provided in this Agreement with any Agreement) to the extent such expenses are to be reimbursed from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash the Trustee, the Master Servicer or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicerapplicable). In any case, Any funds in the Collection Account must which are not withdrawn in satisfaction of the amounts described in this paragraph shall be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification subsection (ii) of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identifiedthis Section 3.6.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LTC Properties Inc)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Default Interest Distri- bution Account, the Interest Reserve Account that are attributable and the Excess Interest Distri- bution Account, the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(e), any amounts deposited pursuant to SUBSECTION 4.03(iii) 3.27 and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(f), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
respectively; (ii) to pay itself or reimburse the Servicer, the Special Servicer, the Trustee or the Fiscal Agent for Advances (provided that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees and additional Servicing Compensation earned hereunder;
such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, (y) any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d) or (z) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination; (iii) (A) to pay itself any unreimbursed Expense to the Servicer, the Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances (to the extent not reimbursed from Default Interest), and (B) to pay to the Servicer, the Special Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances (pro- vided that in the collections from case of both (A) and (B), the related Loan, for which Trustee and the Fiscal Agent shall have priority with respect to such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments;
payments); (iv) to withdraw pay on or before each Servicer Remittance Date to the Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee (less any amount received from an Obligor that is recoverable Servicer Prepayment Interest Shortfalls) and sought Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with a final, nonappealable order of a court having competent jurisdiction;
(vSection 3.07(b) to withdraw any interest or investment income earned on funds deposited in the Collection Account that were not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulations; and
(vi) to clear and terminate the Collection Account upon the termination of this Agreement with any amounts on deposit therein being paid as directed by the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.Account;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Com Mor Pass THR Cer Ser 1997 Md)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause Master Servicer may, from time to be withdrawn funds time make withdrawals from the Collection Account for the following purposespurposes (without duplication) and in the amounts so specified by the Master Servicer in the following order of priority:
(ia) to effect reimburse the Remittance Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer, as applicable, in that order, for any Nonrecoverable Advances with interest accrued thereon at the Advance Rate;
(b) to reimburse the Master Servicer (to the extent it has not been previously reimbursed by the Special Servicer), the Fiscal Agent, or the Trustee and the Special Servicer in that order, for Advances, including accrued interest on such Advances at the Advance Rate from the date each such Advance was made until the same is reimbursed to the Master Servicer, the Special Servicer, the Fiscal Agent or before 1:00 p.m. Dallasthe Trustee pursuant to this Section 3.12, Texas time such right of reimbursement pursuant to this subclause (b) being limited to amounts received in respect of particular Mortgage Loans (including, for this purpose, Insurance Proceeds, Liquidation Proceeds, amounts representing proceeds of other insurance policies, if any, covering the related Mortgaged Property, rental and other income from REO Property and proceeds of any purchase or repurchase of the related Mortgage Loan); provided, however, that any such Advances made pursuant to Section 3.26 or -------- ------- in connection with a defaulted Mortgage Loan that the Special Servicer does not foreclose on pursuant to the Remittance Date provisions of the last paragraph of Section 3.15 may be reimbursed from any other amounts in the Collection Account; and provided, further, that any Advance made of any attorney's -------- ------- fees or other expenses incurred in connection with its activities pursuant to Section 3.15 and described in clause (Ad) all Revenues received by Subservicer during of the preceding calendar month, plus definition of Realized Loss may be reimbursed from any amounts then on deposit in the Collection Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less Account;
(c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself any to the Master Servicer the Servicing Fees and additional Servicing Compensation earned hereunder;
(iii) to pay itself any unreimbursed Expense Advances Fee, to the extent that such amount was not previously paid to or retained by the collections Master Servicer, and any additional servicing compensation payable to it and to pay to the Special Servicer the Special Servicer Compensation (to the extent not otherwise retained by the Special Servicer) and any additional servicing compensation payable to it;
(d) to reimburse the Master Servicer or the Special Servicer, as the case may be, from Liquidation Proceeds for Liquidation Expenses and to reimburse the related LoanMaster Servicer or the Special Servicer, for which such Expense Advances were madeas the case may be, have been received by Subservicerfrom Liquidation Proceeds and, including any collections after a Final Recovery Determination, from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the amount of any unpaid Servicing Fee or Special Servicing Fee together with interest thereon at the Advance Rate with respect to the related Obligor in repayment of such Expense Advances, but excluding any Monthly PaymentsMortgage Loan;
(ive) to pay to the Seller, the Master Servicer or the Trustee, as the case may be, with respect to each Mortgage Loan or property acquired in respect thereof that has been or is being purchased pursuant to Sections 2.01, 2.02, 2.03, 3.11 or 10.01 hereof, all amounts received thereon subsequent to the date of such purchase and not taken into account in determining the Purchase Price of such repurchased Mortgage Loan;
(f) to pay or reimburse the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent or the Depositor for expenses including interest accrued thereon at the Advance Rate of the Trust Fund incurred by and reimbursable to such Persons pursuant to the terms hereof (including Additional Trust Fund Expenses) and Special Servicer Compensation (to the extent not already paid) payable to the Special Servicer from the Trust Fund hereunder; provided, however, that with respect to Additional Trust -------- ------- Fund Expenses, such Expenses may be paid on a monthly basis.
(g) to make payments to the Trustee for deposit in the Distribution Account in the amounts, and in the manner, specified in this Agreement;
(h) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdiction;
(v) to withdraw any funds deposited in the Collection Account that were pursuant to Section 3.08 and not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vii) to clear and terminate the Collection Account upon the termination of this Agreement pursuant to Section 10.01 hereof. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to such subclauses (a) through (h) above. The Master Servicer may apply Liquidation Proceeds and Insurance Proceeds received with any amounts on deposit therein being paid as directed respect to a particular Mortgage Loan to reimbursements permitted by the Servicer.
clauses (b) All remittances of funds by Subservicer and (d) above with respect to such Mortgage Loan first to the Trustee, then to the Fiscal Agent, then to the Special Servicer pursuant and finally to this Agreement the Master Servicer. On or prior to each Servicer Remittance Date, the Master Servicer shall be made by wire transfer of withdraw from the Collection Account and remit to the Trustee, in immediately available funds, and the Trustee, upon receipt thereof, shall deposit in the Distribution Account, an amount equal to the aggregate Available Distribution Amount for the related Distribution Date less any Advances previously remitted by the Master Servicer but subsequently determined to be a Nonrecoverable Advance, together with any Prepayment Premiums received prior to the related Determination Date. The Subservicer Master Servicer shall not retain pay to the Special Servicer, the Trustee or the Fiscal Agent from the Collection Account amounts permitted to be paid to the Special Servicer, the Fiscal Agent or the Trustee therefrom promptly upon receipt of a certificate of the Special Servicer Officer, a Responsible Officer of the Trustee or a Responsible Officer of the Fiscal Agent, as the case may be, describing the item and amount to which the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, is entitled. The Master Servicer may rely conclusively on any cash or investment such certificate and shall have no duty to re-calculate the amounts stated therein. The Special Servicer shall keep and maintain separate accounting on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any request made by it for any withdrawal from the Collection Account. The Trustee, the Fiscal Agent, the Master Servicer and the Special Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for a period the payment of, in excess the case of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above the Master Servicer, the Servicing Fee payable to the Master Servicer hereunder, in the case of the Special Servicer, the Special Servicer Compensation payable to the Special Servicer, in the case of the Trustee, the amounts payable to the Trustee hereunder and in the case of the Fiscal Agent, the amount payable to the Fiscal Agent hereunder, and for the reimbursement of any of their respective expenses such as Additional Trust Fund Expenses (including those expenses of the Trustee incurred as a result of the occurrence of an Event of Default), including accrued interest, unreimbursed Advances (with interest thereon at the Advance Rate) and unpaid Servicing Fees and Special Servicer Compensation hereunder to the extent such expenses are to be reimbursed from amounts on a first-in, first-out basis.
(c) The funds held deposit in the Collection Account may be invested (pursuant to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicerthis Agreement.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Cs First Boston Mortgage Securities Corp /De/)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account, the amounts required to be deposited in the Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.27(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and the Special Servicer for Advances (provided, that the Trustee and Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees and additional Servicing Compensation earned hereundersuch Person pursuant to this clause (ii) being limited to either (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, (y) with respect to P&I Advances, any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d), or (z) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense to the Servicer, the Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances (to the extent not reimbursed from Default Interest), and (B) to pay to the Servicer, Special Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances (provided that in the collections from case of both (A) and (B), the related Loan, for which Trustee and the Fiscal Agent shall have priority with respect to such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentspayments);
(iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant pay on or before each Servicer Remittance Date to the United States Bankruptcy Code Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation, respectively, in accordance with a finalrespect of the immediately preceding month, nonappealable order of a court having competent jurisdiction;to
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to pay to the participant or participants (the "Other Participant") in the Anchorage Participation, other than the Trustee as assignee of the Depositor (as "Lead Lender" under the Anchorage Participation Agreement), the amount of the Monthly Payment to which the Other Participant is entitled under the Anchorage Participation Agreement;
(x) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vixi) to clear and terminate the Collection Account upon the termination of this Agreement with any amounts on deposit therein being paid as directed by the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basisSection 9.01.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Commercial Mortgage Funding I Corp)
Permitted Withdrawals from the Collection Account. The Servicer shall withdraw amounts deposited in the Collection Account pursuant to the terms hereof in the following order of priority:
(a) The Subservicer shall withdraw to pay itself the Servicing Fee and, if applicable, the Special Servicing Fee (which Special Servicing Fee may accrue in accordance with Section 3.15), the Disposition Fee and the Modification Fee pursuant to Section 3.15 on each Remittance Date;
(b) to deposit into the Certificate Account the Trustee Fee and any expenses of the Trustee reimbursable pursuant to Section 8.05 on each Remittance Date;
(c) to reimburse itself on each Remittance Date for any unreimbursed Property Protection Advances or cause Monthly Advances that the Servicer has deemed since the previous Remittance Date to be withdrawn Nonrecoverable Advances, together with interest at the Advance Rate thereon from the date on which such Property Protection Advance or Monthly Advance was made;
(d) to reimburse itself for any unreimbursed Property Protection Advances, together with interest at the Advance Rate, as to which funds from were deposited in the Collection Account for pursuant to Section 3.07(iv), on the following purposes:date on which such funds were so deposited in the amount described in such Section 3.07(iv);
(ie) to effect reimburse itself on each Remittance Date for any unreimbursed Monthly Advances, together with interest at the Remittance Advance Rate, as to which the amount so advanced was subsequently received or applied as a late payment pursuant to the Note and which amount was transferred from the Lockbox Account to the Collection Account on the related Due Date;
(f) to remit to the Servicer on the amount of any net interest or before 1:00 p.m. Dallas, Texas time net investment income earned on the Remittance Date of Collection Account since the related Due Date;
(Ag) all Revenues received by Subservicer during to remit the preceding calendar month, plus any amounts then balance on deposit in the Collection Account that are attributable on each Remittance Date to the repurchase of any Loan Certificate Account for distribution by the Trustee to Certificateholders on the following Distribution Date pursuant to SUBSECTION 4.03(ii), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself any Servicing Fees and additional Servicing Compensation earned hereunder;
(iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments;
(iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdiction;
(v) to withdraw any funds deposited in the Collection Account that were not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA RegulationsSection 4.01; and
(vih) to clear and terminate the Collection Account upon the termination of this Agreement with the Trust Fund pursuant to Section 9.01. The Trustee and the Servicer shall in all cases have a right prior to the Certificateholders to any funds deposited in the Collection Account from time to time for the payment of, in the case of the Trustee, the Trustee's Fee currently payable therefrom or, in the case of the Servicer, the Servicing Fee, the Special Servicing Fee, the Disposition Fee, the Modification Fee, any interest at the Advance Rate, unreimbursed Property Protection Advances and unreimbursed Monthly Advances, in each case, currently payable therefrom, and in the case of the Trustee, for the reimbursement of its respective expenses hereunder to the extent such expenses are to be reimbursed from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain (and to have such amounts paid directly to third party contractors for any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basisinvoices properly presented).
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Hospitality Properties Trust)
Permitted Withdrawals from the Collection Account. and Grantor Trust Collection Account. --------------------------------
(a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account (and the Grantor Trust Collection Account, with respect to Deferred Interest) only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect remit the Remittance applicable amounts to the Servicer on or before 1:00 p.m. DallasTrustee, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on for deposit in the Collection Distribution Account, the Grantor Trust Distribution Account that are attributable to and the repurchase of any Loan Excess Liquidation Proceeds Account pursuant to SUBSECTION 4.03(iiSection 4.5, Section 3.5(d) and Section 3.5(f), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer, in that order of priority for Advances; provided, however, the right of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent to reimbursement pursuant to this clause (ii) being limited to either (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which each such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) to pay to the Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer, in that order of priority, any then outstanding Advance Interest Amount first out of Default Interest and late payment charges actually collected during such Collection Period in respect of the related Mortgage Loan and, to the extent such amounts are insufficient, in connection with or at any time following the reimbursement of such Advance from any other amounts in the Collection Account;
(iv) to pay on or before each Remittance Date to the Master Servicer, Special Servicer and Trustee, as applicable, as compensation, the unpaid Master Servicer Fee, Special Servicer Fee, Standby Special Servicer Fee and Trustee Fee, respectively (in the case of the Master Servicer, reduced up to the amount of any Prepayment/Balloon Payment Interest Shortfalls with respect to such Distribution Date, in accordance with Section 3.25), to be paid, in the case of the Master Servicer Fee, from interest received on the related Mortgage Loans, and to pay to the Master Servicer or the Special Servicer, as applicable, any other amounts constituting Servicing Fees Compensation;
(v) to pay on or before each Distribution Date to the Depositor, the applicable Seller or the purchaser of any Specially Serviced Mortgage Loan or REO Property, as the case may be, with respect to each Mortgage Loan, Deleted Mortgage Loan or REO Property that has previously been repurchased, replaced or purchased by it pursuant to Section 2.3, Section 3.18 or Section 9.1, all amounts received thereon during the related Collection Period and additional subsequent to the effective date of such purchase or repurchase.
(vi) to the extent reimbursement or payment is not provided for pursuant to any other clause of this Section 3.6(a), to reimburse or pay the Master Servicer, the Special Servicer, the Trustee, the Depositor and/or the Fiscal Agent for unpaid items incurred by or on behalf of such Person pursuant to, as applicable, Section 3.7(c), Section 6.3, Section 7.4, Section 8.5(d) or Section 11.7, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vii) to deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on REMIC I, REMIC II and REMIC III or the Grantor Trust under the circumstances and to the extent described in Section 10.3 and Section 10.5, respectively;
(viii) to withdraw any amount deposited into the Collection Account and the Grantor Trust Collection Account that was not required to be deposited therein; and
(ix) to clear and terminate the Collection Account and the Grantor Trust Collection Account pursuant to Section 9.
1. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account or Grantor Trust Collection Account pursuant to subclauses (ii) - (viii) above.
(b) The Master Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(viii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the Trustee, an officer of the Fiscal Agent or a Servicing Compensation earned hereunderOfficer of the Special Servicer, as applicable, describing the item and amount to which the Trustee, the Fiscal Agent or the Special Servicer is entitled. The foregoing sentence does not apply to the payment of the Trustee Fee. The Master Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein.
(c) The Trustee shall, from time to time, make withdrawals from the Distribution Account for each of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution Date pursuant to Article IV;
(ii) to transfer Interest Reserve Amounts to the Interest Reserve Account pursuant to Section 3.29;
(iii) to pay itself or any unreimbursed Expense Advances of its directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 3.6(a), including the Trustee's Fee, but only to the extent that not previously paid by the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly PaymentsMaster Servicer pursuant to Section 3.6(b);
(iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to deposited into the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdiction;
(v) to withdraw any funds deposited in the Collection Distribution Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(viv) to clear and terminate the Collection Distribution Account upon at the termination of this Agreement with any amounts on deposit therein being paid as directed by the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerSection 9.1.
(d) The amount remitted to Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies all cases have a right prior to the subsequent Remittance Date; howeverCertificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of unpaid or unreimbursed Trustee Fees, Servicing Compensation (subject to the limitation set forth in Section 3.6(a)(iv) for Master Servicer Fees), Advances (subject to the limitation set forth in Section 3.6(a)(ii)) and their respective expenses (including Advance Interest Amounts) hereunder to the extent such cases where expenses, fees, compensation and Advances are to be reimbursed or paid from amounts on deposit in the Collection Account pursuant to this is not possibleAgreement.
(e) The Trustee shall, Servicer upon receipt, deposit in the Distribution Account, the Grantor Trust Distribution Account or the Excess Liquidation Proceeds Account, as applicable, any and Subservicer will diligently continue to work to identify any remaining discrepancies. In all amounts received by the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer Trustee in accordance with Servicer's request Section 3.6(a)(i). If, as of 3:00 p.m., New York City time, on any Remittance Date or on such other date as any amount referred to in Section 3.6(a)(i) is required to be delivered hereunder, the Master Servicer shall not have delivered to the Trustee for deposit in the Distribution Account, the Grantor Trust Distribution Account or the Excess Liquidation Proceeds Account the amounts required to be deposited therein pursuant to Section 3.6(a)(i), then the Trustee shall, to the extent that a Responsible Officer of the Trustee has such knowledge, provide notice of such failure to the Master Servicer by facsimile transmission sent to telecopy no. (816) 435-2326 (or such alternative number provided by the Mastex Xxxxxxxx xo the Trustee in writing) and by telephone at telephone no. (816) 435-5000 (or such alternative number provided by the Master Xxxxxxxx xx the Trustee in writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identifiedday.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (PNC Mort Sec Corp Com Mort Pass THR Cert Ser 2000-C1)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account, the amounts required to be deposited in the Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.27(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and the Special Servicer for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made (provided, however, that reimbursement of Class A-0X X&X Advances shall be limited to any collections on or in respect of the Comsat Junior Loan, and additional Servicing Compensation earned hereunderreimbursement of Class B-3SC Advances shall be limited to any collections on or in respect of the Sxxx Centers Retail Pool Loan in excess of the Senior SC Distribution Amount), (y) with respect to P&I Advances, any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d), or (z) any other amounts in the Collection Account in the event that such Advances or any Advance Interest Amount have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent Servicer, the Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, Special Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances (provided, however, that payment of Advance Interest Amounts in respect of Class A-0X X&X Advances shall be limited to any collections on or in respect of the collections from the related Comsat Junior Loan, for which such Expense and payment of Advance Interest Amounts in respect of Class B-3SC Advances were made, have been received by Subservicer, including shall be limited to any collections from Insurance Proceedson or in respect of the Sxxx Centers Retail Pool Loan in excess of the Senior SC Distribution Amount, Liquidation Proceeds and collections on the Comsat Junior Loan and the SC Junior Portion of the Sxxx Centers Retail Pool Loan shall be unavailable with respect to advances other than Class A-0X X&X Advances and Class B-3SC Advances), in each case, first, out of any collected Default Interest (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentspayments);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Servicer Remittance Date to the Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding month, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account) (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to pay to the participant or participants (the "Other Participant") in the Westin GC Participation, other than the Trustee as assignee of the Depositor under the Westin GC Participation Agreement, the amount of any payment to which the Other Participant is entitled under the Westin GC Participation Agreement;
(x) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vixi) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following the date of such investment and shall not be sold Upper-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerLower-Tier REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Series 1997-D5)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account that are attributable and the Deferred Interest Distribution Account, the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Class Q Distribution Account and the Deferred Interest Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.01(a), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(c) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(d), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent for Advances and any Servicing Fees related Advance Interest Amounts (provided that the Trustee and additional Servicing Compensation earned hereunderthe Fiscal Agent shall have priority with respect to such payment or reimbursement), the Master Servicer's right to reimburse any such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination; provided, however, that, with respect to any Mortgage Loan which provides for a grace period in connection with Monthly Payments, the Master Servicer, Trustee or Fiscal Agent, as applicable, shall only be entitled to interest on any P&I Advance made with respect to such Mortgage Loan, from the date such grace period expires and only to the extent that the applicable Monthly Payment is not received prior to the expiration of such grace period;
(iii) to pay itself any unreimbursed Expense Advances on or before each Master Servicer Remittance Date to the extent that Master Servicer and the collections Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan, for which such Expense Advances were made, have been received by Subservicer, including and to pay from time to time to the Master Servicer in accordance with Section 3.07(b) any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from interest or investment income earned on funds deposited in the related Obligor in repayment of such Expense Advances, but excluding any Monthly PaymentsCollection Account;
(iv) to withdraw pay on or before each Distribution Date to the Depositor, MSMC or any amount received from an Obligor other applicable Person as the case may be, with respect to each Mortgage Loan or REO Property that is recoverable and sought to be recovered as a voidable preference has previously been purchased or repurchased by a trustee in bankruptcy it pursuant to Section 2.03(c), Section 3.18 or Section 9.01, all amounts received thereon during the United States Bankruptcy Code in accordance with a final, nonappealable order related Collection Period and subsequent to the date as of a court having competent jurisdictionwhich the amount required to effect such purchase or repurchase was determined;
(v) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section 3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vi) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(vii) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein therein;
(such as Servicing Compensationviii) to the extent not otherwise retained by the Master Servicer or were deposited therein Xxxx Xxxxxxx and to the extent actually collected, to remit to Xxxx Xxxxxxx (or its successors in error or that constituted Insurance Proceeds interest) any amounts relating to the FHA seeks Xxxxxxx Retained Interest and the portion of any Prepayment Premiums payable to reclaim on Xxxx Xxxxxxx pursuant to the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA RegulationsXxxxxxx Agreement; and
(viix) to clear and terminate the Collection Account pursuant to Section 9.
01. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(v) above. The Master Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom as set forth above, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Master Servicer may conclusively rely on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts and their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available fundsthe Trustee, the Master Servicer or the Special Servicer, as applicable). The Subservicer Trustee shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Class Q Distribution Account and the Deferred Interest Distribution Account any and all amounts received by the Trustee in accordance with Section 3.06(i). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not retain any cash or investment have delivered to the Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account for a period in excess of twelve (12) months and cash the Deferred Interest Distribution Account the amounts required to be deposited therein shall be considered withdrawn pursuant to subsection (a) above to Section 3.06(i), then the Servicer on a first-inTrustee shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Trustee has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative number provided by the ServicerMaster Servicer to the Trustee in writing) and by telephone at telephone no. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer (000) 000-0000 (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Trustee in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identifiedday.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Interest Reserve Account, Excess Interest Distribution Account that are attributable and the Repurchase Price Return of Premium Distribution Account, the amounts required to be deposited in the repurchase Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account and the Repurchase Price Return of any Loan Premium Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.06, 3.27(a), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(b), 3.05(d) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and, with respect to Co-Lender Split Notes, the Other Servicer or Other Special Servicer in accordance with Section 3.31 hereof for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances, and additional Servicing Compensation earned hereunderany Property Advances made by the Lead Lender with respect to the Other Note required to be, but not reimbursed by the Other Trust Fund as provided in Section 3.31, or any Advance Interest Amount have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent that Servicer, the collections from Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances, in each case, first, out of any Default Interest collected in the related LoanCollection Period and, for which otherwise, out of general collections on the Mortgage Loans and any REO Properties (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentspayments);
(iv) to withdraw pay on or before each Servicer Remittance Date to the Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any) and any amount received from an Obligor that is recoverable and sought other servicing or special servicing compensation, as applicable, in respect of the related Collection Period, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from amounts received or advanced on the related Mortgage Loan (or if not so received or advanced, from other funds on deposit in the Collection Account), and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the appropriate Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Trustee Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(c), Section 3.17(a), (b) and (c), Section 3.31(d), Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or any Loan REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (i)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following Upper-Tier REMIC, the date of such investment and shall not be sold Lower-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicerany Loan REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for such withdrawals), subject to the following purposesapplication of Penalty Charges and Modification Fees in accordance with the related Co-Lender Agreement and Section 3.14 of this Agreement:
(i) to effect the Remittance to the Servicer remit on or before 1:00 p.m. Dallas, Texas time on the each Master Servicer Remittance Date of (A) all Revenues received by Subservicer during to the preceding calendar month, plus any amounts then on Certificate Administrator for deposit in the Collection Lower-Tier REMIC Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account that are attributable and the Excess Liquidation Proceeds Reserve Account the amounts required to the repurchase of any Loan be deposited in such accounts pursuant to SUBSECTION 4.03(iiSections 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(e), 3.23, 4.01(a)(i) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv)Section 4.06(a) of this Agreement, plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer or the Trustee, as applicable (A) for Advances made thereby with respect to Mortgage Loans that are not part of a Serviced Loan Combination (other than Workout-Delayed Reimbursement Amounts) and any Servicing Fees and additional Servicing Compensation earned hereunder;
related Advance Interest Amounts (iii) to pay itself any unreimbursed Expense Advances to the extent provided that the collections from Trustee shall have priority with respect to such payment or reimbursement of any such Advances and any related Advance Interest Amounts), the related Loan, for which Master Servicer’s right to reimburse any such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments;
(iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy Person pursuant to this clause (ii)(A) being limited to late collections (including cure payments by related Serviced Companion Loan Holders) of the United States Bankruptcy Code in accordance with a final, nonappealable order of a court having competent jurisdiction;
(v) to withdraw any funds deposited in the Collection Account that were not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that particular item which was the subject of an FHA Claim the related Advance, Penalty Charges, Net Condemnation Proceeds, Net REO Proceeds, Net Insurance Proceeds and Net Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, if applicable (provided that (x) prior to the time any Advance is found not reimbursed, Advance Interest Amounts may be reimbursed solely from Penalty Charges and Modification Fees collected on the related Mortgage Loan, and (y) at the time any Advance (other than Workout Delayed Reimbursement Amounts) is reimbursed, Advance Interest Amounts on such reimbursed Advance shall be payable first from Penalty Charges and Modification Fees collected on the related Mortgage Loan, and, to conform to FHA Regulations; and
(vi) to clear the extent such Penalty Charges and terminate the Collection Account upon the termination of this Agreement with any amounts Modification Fees are insufficient, then from general collections on deposit therein being paid as directed by the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account Account), (B) for Advances made thereby with respect to Mortgage Loans that are part of a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, Serviced Loan Combination and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding related Advance Interest Amounts (provided that the Remittance Date next following the date of such investment and Trustee shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer have priority with respect to such Remittance Date. Every effort will be made by Servicer payment or reimbursement of any such Advances and Subservicer any related Advance Interest Amounts), the Master Servicer’s right to resolve discrepancies prior reimburse any such person pursuant to this clause (ii)(B) being limited to Net Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, which Net Liquidation Proceeds were received in connection with any of the events described in clauses (iii), (iv) and (vii) of the definition of “Liquidation Event”, (C) to the subsequent Remittance Date; howeverextent not reimbursed pursuant to Section 3.14 of this Agreement, in such cases where this is not possible, Servicer for Advances and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report related Advance Interest Amounts (or portion thereof) that accurately reflects the amounts which should have been remitted deemed to be Nonrecoverable Advances or are not recovered from recoveries in respect of the related Mortgage Loan, Serviced Loan Combination or REO Property after a Final Recovery Determination to the extent not recovered from the related Loan Combination Custodial Account and Advance Interest Amounts thereon, first, out of the principal portion of general collections on the related Remittance DateMortgage Loans and REO Properties, and remit second, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any discrepancy election in cash its sole discretion to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.defer reimbursement thereof pursuant to Section
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2019-Gc43)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, Excess Interest Distribution Account, the Repurchase Price Return of Premium Distribution Account that are attributable and the Post Lock-Out Return of Premium Distribution Account, the amounts required to be deposited in the repurchase Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Repurchase Price Return of any Loan Premium Distribution Account and the Post-Lock Out Return of Premium Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.27(a), 3.05(e), 3.05(f) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(g), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer, the Co-Servicer, the Special Servicer and, with respect to Co-Lender Split Notes, the Other Servicer or Other Special Servicer in accordance with Section 3.32 hereof for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made, (y) with respect to P&I Advances, any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d), or (z) any other amounts in the Collection Account in the event that such Advances, and additional Servicing Compensation earned hereunderany Property Advances made by the Lead Lender with respect to the Other Note required to be, but not reimbursed by the Other Trust Fund as provided in Section 3.32 or any Advance Interest Amount have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent that Servicer, the collections from Co-Servicer, the related LoanTrustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, for which such Expense Advances were madeCo-Servicer, have been received by SubservicerSpecial Servicer, including Trustee or Fiscal Agent any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advance Interest Amounts not relating to any P&I Advances, but excluding in each case, first, out of any Monthly Paymentscollected Default Interest (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such payments);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Servicer Remittance Date to the Servicer, the Co-Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any), as applicable, in respect of the immediately preceding month, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer or the Co-Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account (the Servicer and the Co-Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the appropriate Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Co-Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer and the Co-Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (i)-(vii) above. The Servicer and the Co-Servicer shall pay to the Trustee, the Fiscal Agent, the Co-Servicer or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent, the Co-Servicer or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer and the Co-Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer, the Co-Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash the Trustee, the Servicer, the Co-Servicer or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following the date of such investment and shall not be sold Upper-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerLower-Tier REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capco America Securitization Corp)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Interest Reserve Account that are attributable and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account and the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account pursuant to SUBSECTION 4.03(iiSection 4.01(a)(i), any amounts deposited pursuant to SUBSECTION 4.03(iii) Section 3.25 and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv)Section 3.07, plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer or the Trustee, (A) for Advances made thereby with respect to Mortgage Loans that are not part of a Serviced Whole Loan (other than Workout-Delayed Reimbursement Amounts) and any Servicing Fees related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and additional Servicing Compensation earned hereunderany related Advance Interest Amounts), the Master Servicer's right to reimburse any such Person pursuant to this clause (ii)(A) being limited to late collections (including cure payments by related Companion Loan Noteholders) of the particular item which was the subject of the related Advance, Penalty Charges and Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made; if applicable; provided that (x) prior to the time any Advance is reimbursed, Advance Interest Amounts may be reimbursed solely from Penalty Charges, and (y) at the time any Advance (other than Workout Delayed Reimbursement Amounts) is reimbursed, Advance Interest Amounts on such reimbursed Advance shall be payable first from Penalty Charges collected on the related Mortgage Loan, and, to the extent such Penalty Charges are insufficient, then from general collections on deposit in the Collection Account, (B) for Advances and any related Advance Interest Amounts (or portion thereof) that have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination to the extent not recovered from the related Whole Loan Custodial Account and Advance Interest Amounts thereon, first, out of the principal portion of general collections on the Mortgage Loans and REO Properties (to be allocated between the Loan Groups as set forth in the last paragraph of this Section 3.06), and second, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any election in its sole discretion to defer reimbursement thereof pursuant to Section 3.30, out of other collections on the Mortgage Loans and REO Properties (to be allocated between the Loan Groups as set forth in the last paragraph of this Section 3.06) and, (C) for Workout-Delayed Reimbursement Amounts and Advance Interest Amounts thereon, first, out of the principal portion of the general collections on the Mortgage Loans and REO Properties, net of such amounts being reimbursed pursuant to (B) above (to be allocated between the Loan Groups as set forth in the last paragraph of Section 3.06) and second, upon a determination by the Master Servicer, the Special Servicer or the Trustee, as applicable, that a Workout-Delayed Reimbursement Amount is a Nonrecoverable Advance, in the same manner as Nonrecoverable Advances may be reimbursed;
(iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments[Reserved];
(iv) to withdraw any amount received from an Obligor pay on or before each Master Servicer Remittance Date to the Master Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee with respect to Mortgage Loans that is recoverable and sought are not part of a Serviced Whole Loan (to the extent not otherwise required to be recovered as a voidable preference by a trustee applied against Prepayment Interest Shortfalls), and Special Servicing Compensation (if any), respectively, in bankruptcy pursuant respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan and to pay from time to time to the United States Bankruptcy Code Master Servicer in accordance with a final, nonappealable order of a court having competent jurisdictionSection 3.07(b) any interest or investment income earned on funds deposited in the Collection Account;
(v) in accordance with Section 2.03, to reimburse the Trustee or the Special Servicer, out of general collections on the Mortgage Loans and related REO Properties (including with respect to the Non-Serviced Mortgaged Loan) for any unreimbursed expense reasonably incurred by the Trustee or the Special Servicer in connection with the enforcement of a Mortgage Loan Seller's obligations under Section 6(e) of the related Loan Sale Agreement, together with interest thereon at the Advance Rate, but only to the extent that such expenses are not otherwise reimbursable;
(vi) to pay out of general collections on the Mortgage Loans and related REO Properties, for costs and expenses incurred by the Trust Fund with respect to the Mortgage Loans and related REO Properties pursuant to Section 3.10(e) and to pay Liquidation Expenses out of related Liquidation Proceeds pursuant to Section 3.11 (provided that with respect to each Serviced Whole Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(vi) to the extent related to such Serviced Whole Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vi));
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer or the Depositor, as applicable, for unpaid Trustee Fees, unpaid Servicing Fees, unpaid Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(c), Section 3.17(a), Section 6.03, Section 7.04, Section 8.05(a), Section 8.05(b), Section 8.05(d) or Section 11.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement (provided that with respect to each Serviced Whole Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(vii) to the extent related to such Serviced Whole Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vii));
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; andor
(vix) to clear and terminate the Collection Account pursuant to Section 9.01. The Master Servicer shall also be entitled to make withdrawals from time to time, from the Collection Account of amounts necessary for the payments or reimbursement of amounts required to be paid to the Other Master Servicer, Other Special Servicer or Other Trustee, as applicable, by the holders of the Non-Serviced Mortgage Loan pursuant to the Franklin Mills Intercreditor Agreement. In the absence of manifest errox, xxx Xxxxxx Servicer may conclusively rely on the request for payments contemplated by the preceding sentence. If and to the extent that the Master Servicer has reimbursed itself pursuant to clauses (a)(ii), (a)(vi) or (a)(vii) above for an expense with respect to a Whole Loan that represents the related Companion Loan's allocable share of such cost or expense, the Master Servicer shall use efforts consistent with the Servicing Standard to collect such amounts from the Companion Loan Noteholder and deposit all such amounts collected from or on behalf of the Companion Noteholder into the Collection Account. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(ix) above. The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer) and the Trustee, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of an officer of the termination Special Servicer or a Responsible Officer of the Trustee, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor) or the Trustee, as the case may be, is entitled (unless such payment to the Special Servicer or the Trustee, as the case may be, is clearly required pursuant to this Agreement with Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis. The Trustee, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts and their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement (and to have such amounts paid directly to third party contractors for any invoices approved by the Trustee, the Master Servicer or the Special Servicer, as applicable). The Trustee shall, upon receipt, deposit in the Lower-Tier Distribution Account and the Interest Reserve Account and Excess Liquidation Proceeds Reserve Account any and all amounts received by the Trustee in accordance with Section 3.06(a)(i). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not have delivered to the Trustee for deposit in the Lower-Tier Distribution Account and the Interest Reserve Account and Excess Liquidation Proceeds Reserve Account the amounts required to be deposited therein pursuant to the provisions of this Agreement (including, without limitation, Section 3.06(a)(i)), then the Trustee shall, to the extent that a Responsible Officer of the Trustee has such knowledge, provide notice of such failure to the Master Servicer by facsimile transmission sent to telecopy No. (704) 715-0036 (or such alternative number provided by the Master Servixxx xx xxx Xxxstee in writing) and by telephone at telephone No. (704) 593-7816(or such alternative number provided by the Master Servicxx xx xxx Xxxxtee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such day; provided, however, that the Master Servicer will pay the Trustee interest on such late payment at the prime rate until such late payment is received by the Trustee. To the extent a Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to a Mortgage Loan is required to be reimbursed from the principal portion of the general collections on the Mortgage Loans pursuant to clause (ii) of this Section 3.06, such reimbursement shall be made by wire transfer of immediately first, from the principal collections available funds. The Subservicer shall not retain any cash or investment on the Mortgage Loans included in the Collection Account for a period same Loan Group as such Mortgage Loan and if the principal collections in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant such Loan Group are not sufficient to subsection (a) above to make such reimbursement in full, then from the Servicer on a first-in, first-out basis.
(c) The funds held principal collections available in the Collection Account may be invested other Loan Group (after giving effect to any reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts related to such other Loan Group). To the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer a Nonrecoverable Advance with respect to a Mortgage Loan is required to be reimbursed from the interest portion of the general collections on the Mortgage Loans pursuant to clause (ii) of this Section 3.06, such Remittance Date. Every effort will reimbursement shall be made by Servicer first, from the interest collections available on the Mortgage Loans included in the same Loan Group as such Mortgage Loan and Subservicer if the interest collections in such Loan Group are not sufficient to resolve discrepancies prior make such reimbursement in full, then from the interest collections available in the other Loan Group (after giving effect to the subsequent Remittance Dateany reimbursement of Nonrecoverable Advances related to such other Loan Group); provided, however, that this provision shall not result in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date change in the month following interest distributions in the month in which such discrepancy is identifiedmanner required under Section 4.01(a)(i) of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2007-Gg10)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account, the amounts required to be deposited in the Distribution Account, the Default Interest Distribution Account, the Interest Reserve Account, and the Excess Interest Distribution Account that are attributable to the repurchase of any Loan pursuant to SUBSECTION 4.03(iiSections 4.06, 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.05(d), 3.27(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(e), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) below;
(ii) to pay itself or reimburse the Trustee, the Fiscal Agent, the Servicer and the Special Servicer for Advances (provided, that the Trustee and the Fiscal Agent shall have priority with respect to such payment or reimbursement), the Servicer's right to reimburse any Servicing Fees such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property with respect to which such Advance was made (provided, however, that reimbursement of Class A-8Z P&I Advances shall be limited to any collectionx xx or in respect of the Comsat Junior Loan, and additional Servicing Compensation earned hereunderreimbursement of Class B-3SC Advances shall be limited to any collections on or in respect of the Saul Centers Retail Pool Loan in excess of the Senior SX Xxstribution Amount), (y) with respect to P&I Advances, any Subordinate Class Advance Amounts with respect to the related Distribution Date as provided in Section 4.06(d), or (z) any other amounts in the Collection Account in the event that such Advances or any Advance Interest Amount have been deemed to be Nonrecoverable Advances or are not reimbursed from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) (A) to pay itself any unreimbursed Expense Advances to the extent Servicer, the Trustee or the Fiscal Agent the Advance Interest Amount relating to P&I Advances and (B) to pay to the Servicer, Special Servicer, Trustee or Fiscal Agent any Advance Interest Amounts not relating to any P&I Advances (provided, however, that payment of Advance Interest Amounts in respect of Class A-8Z P&I Advances shall be limited to any collections xx xx xx respect of the collections from the related Comsat Junior Loan, for which such Expense and payment of Advance Interest Amounts in respect of Class B-3SC Advances were made, have been received by Subservicer, including shall be limited to any collections from Insurance Proceedson or in respect of the Saul Centers Retail Pool Loan in excess of the Senior XX Xistribution Amount, Liquidation Proceeds and collections on the Comsat Junior Loan and the SC Junior Portion of the Saul Centers Retail Pool Loan shall be unavailable wixx respect to advances other than Class A-8Z P&I Advances and Class B-3SC Advances), in each cxxx, xxrst, out of any collected Default Interest (provided that in the case of both (A) and (B), the Trustee and the Fiscal Agent shall have priority with respect to such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentspayments);
(iv) to withdraw any amount received from an Obligor that is recoverable pay on or before each Servicer Remittance Date to the Servicer and sought the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Compensation and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding month, to be recovered as a voidable preference by a trustee paid, in bankruptcy pursuant the case of the Servicing Fee, from interest received on the related Mortgage Loan, and to pay from time to time to the United States Bankruptcy Code Servicer in accordance with Section 3.07(b) any interest or investment income earned on funds deposited in the Collection Account) (the Servicer may rely on a final, nonappealable order certification of a court having competent jurisdictionthe Special Servicer as to amounts of Special Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee Fee in respect of the immediately preceding month to be paid from interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the Mortgage Loan Seller or other Originator, as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Servicer, the Trustee, the Special Servicer, the Depositor or the Fiscal Agent, as applicable, for unpaid Servicing Fees, Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section 7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(ix) to pay to the participant or participants (the "Other Participant") in the Westin GC Participation, other than the Trustee as assignee of the Depositor under the Westin GC Participation Agreement, the amount of any payment to which the Other Participant is entitled under the Westin GC Participation Agreement;
(x) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(vixi) to clear and terminate the Collection Account pursuant to Section 9.01. The Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vii) above. The Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee or the Fiscal Agent or a certificate of this Agreement with a Servicing Officer, as applicable, describing the item and amount to which such Person is entitled. The Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to Trustee, the Servicer on a first-in, first-out basis.
(c) The funds held in or the Collection Account may be invested (to the extent practicable) in Permitted InstrumentsSpecial Servicer, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, applicable) and any Permitted Instruments must mature federal, state or otherwise be available for withdrawal not later than one Business Day immediately preceding local taxes imposed on either the Remittance Date next following the date of such investment and shall not be sold Upper-Tier REMIC or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by ServicerLower-Tier REMIC.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Series 1997-D5)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account (and the Grantor Trust Collection Account, with respect to Contingent Interest) only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. DallasTrustee, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on for deposit in the Collection Distribution Account that are attributable and the Grantor Trust Distribution Account, the amounts required to be deposited in the repurchase of any Loan Distribution Account and the Grantor Trust Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.5 and 3.5(d), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay or reimburse the Master Servicer, the Trustee or the Fiscal Agent for Advances; provided, however, the right of the Master Servicer, the Trustee or the Fiscal Agent to reimburse itself pursuant to this clause (ii) being limited to either (x) any Servicing Fees and additional Servicing Compensation earned hereundercollections on or in respect of the particular Mortgage Loan or REO Property respecting which each such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) to pay itself any unreimbursed Expense Advances to the Master Servicer, the Trustee or the Fiscal Agent the Advance Interest Amount first out of Default Interest and late payment charges actually collected in respect of the related Mortgage Loan and, to the extent that such amounts are insufficient, in connection with or at any time following the collections reimbursement of such Advance from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from in the related Obligor in repayment of such Expense Advances, but excluding any Monthly PaymentsCollection Account;
(iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant pay on or before each Remittance Date to the United States Bankruptcy Code Master Servicer, Special Servicer and Trustee, as applicable, as compensation, the unpaid Master Servicing Fee, Special Servicing Fee, and Trustee Fee, respectively (in the case of the Master Servicer, reduced up to the amount of any Prepayment Interest Shortfalls with respect to such Distribution Date, in accordance with a finalSection 3.25), nonappealable order to be paid, in the case of a court having competent jurisdictionthe Master Servicing Fee, from interest received or advanced on the related Mortgage Loans, and to pay to the Master Servicer or the Special Servicer, as applicable, any other amounts constituting Servicing Compensation;
(v) to pay on or before each Distribution Date to the Depositor, the applicable Seller or the purchaser of any Specially Serviced Mortgage Loan or REO Property, as the case may be, with respect to each Mortgage Loan, Deleted Mortgage Loan or REO Property that has previously been repurchased, replaced or purchased by it pursuant to Section 2.3, Section 3.18 or Section 9.1, all amounts received thereon during the related Collection Period and subsequent to the effective date of such purchase or repurchase.
(vi) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.6, to reimburse or pay the Master Servicer, the Special Servicer, the Trustee, the Depositor and/or the Fiscal Agent for unpaid items incurred by or on behalf of such Person pursuant to Section 3.7(c), Section 3.10, Section 3.17(a), (b) and (c), Section 3.18(a), 6.3, 7.4, 8.5(d), 9.1 or Section 11.7, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vii) to deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on REMIC I, REMIC II and REMIC III under the circumstances and to the extent described in Section 10.3;
(viii) to withdraw any funds amount deposited in into the Collection Account and the Grantor Trust Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; and
(viix) to clear and terminate the Collection Account pursuant to Section 9.
1. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii) - (viii) above. The Master Servicer shall pay to the Trustee, the Fiscal Agent or the Special Servicer from the Collection Account (to the extent permitted by clauses (i)-(viii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the termination Trustee, an officer of this Agreement with the Fiscal Agent or a Servicing Officer of the Special Servicer, as applicable, describing the item and amount to which the Trustee, the Fiscal Agent or the Special Servicer is entitled. The Master Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit therein being paid as directed by the Servicer.
(b) All remittances of funds by Subservicer to Servicer pursuant to this Agreement shall be made by wire transfer of immediately available funds. The Subservicer shall not retain any cash or investment in the Collection Account from time to time for a period in excess the reimbursement or payment of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-in, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instruments, as directed in writing to the Subservicer by the Servicer. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer or such other name or names as designated by Servicer.
(d) The amount remitted to Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request as soon as possible following identification of such discrepancy. In the case of a Servicer error, Servicer will correct the error on or before the Remittance Date in the month following the month in which such discrepancy is identified.Servicing Compensation,
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certificates Series 1998 C1)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account that are attributable and the Excess Interest Distribution Account the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account pursuant to SUBSECTION 4.03(iiSections 4.01(a)(i), any amounts deposited pursuant to SUBSECTION 4.03(iii) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv3.05(c), plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below3.25 and 3.05(d), less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Trustee or the Fiscal Agent for Advances and any Servicing Fees related Advance Interest Amounts (provided that the Trustee and additional Servicing Compensation earned hereunderthe Fiscal Agent shall have priority with respect to such payment or reimbursement of any such Advances and any related Advance Interest Amounts), the Master Servicer's right to reimburse any such Person pursuant to this clause (ii) being limited to (x) any collections on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, or (y) any other amounts in the Collection Account in the event that such Advances have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination;
(iii) to pay itself any unreimbursed Expense Advances to the extent that the collections from the related Loan, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Payments;[Reserved]
(iv) to withdraw any amount received from an Obligor that is recoverable and sought the extent not otherwise required to be recovered as a voidable preference by a trustee in bankruptcy pursuant applied against Prepayment Interest Shortfalls, to pay on or before each Master Servicer Remittance Date to the United States Bankruptcy Code Master Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee and Special Servicing Compensation (if any), respectively, in respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan and to pay from time to time to the Master Servicer in accordance with a final, nonappealable order of a court having competent jurisdictionSection 3.07(b) any interest or investment income earned on funds deposited in the Collection Account;
(v) to pay on or before each Distribution Date to the Seller, the applicable Responsible Party or any other applicable Person as the case may be, with respect to each Mortgage Loan or REO Property that has previously been purchased or repurchased by it pursuant to Section 2.03(d), Section 3.18 or Section 9.01, all amounts received thereon during the related Collection Period and subsequent to the date as of which the amount required to effect such purchase or repurchase was determined;
(vi) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer, the Seller or the Fiscal Agent, as applicable, for unpaid Servicing Fees, unpaid Special Servicing Compensation and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section 3.12(d), Section 3.17(a), Section 3.18(b), Section 6.03, Section 7.04, Section 8.05(d) or Section 10.07, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05;
(viii) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulations; andtherein;
(viix) to pay on or before each Distribution Date to any Responsible Party any amounts required to be paid thereto pursuant to Section 2.03(f);
(x) to clear and terminate the Collection Account upon pursuant to Section 9.01. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the termination purpose of this Agreement with justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(vi) above. The Trustee, the Fiscal Agent, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts and their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available fundsthe Trustee, the Master Servicer or the Special Servicer, as applicable). The Subservicer Trustee shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account any and all amounts received by the Trustee in accordance with Section 3.06(i). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not retain any cash or investment have delivered to the Trustee for deposit in the Collection Lower-Tier Distribution Account, the Class Q Distribution Account, the Interest Reserve Account for a period in excess of twelve (12) months and cash the Excess Interest Distribution Account the amounts required to be deposited therein shall be considered withdrawn pursuant to subsection the provisions of this Agreement (a) above to including, without limitation, Section 3.06(i)), then the Servicer on a first-inTrustee shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Trustee has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy No. (000) 000-0000 (or such alternative number provided by the ServicerMaster Servicer to the Trustee in writing) and by telephone at telephone No. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer (000) 000-0000 (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Trustee in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In day; provided, however, that the case of a Servicer error, Master Servicer will correct pay the error Trustee interest on or before such late payment at the Remittance Date in prime rate until such late payment is received by the month following the month in which such discrepancy is identifiedTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Sec Corp Ii Comm Mort Pa Thro Cer Ser 1999-C1)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for such withdrawals), subject to the following purposesapplication of Penalty Charges and Modification Fees in accordance with Section 3.14 of this Agreement:
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Certificate Administrator for deposit in the Collection Lower-Tier Distribution Account, the Interest Reserve Account that are attributable and the Excess Liquidation Proceeds Reserve Account the amounts required to the repurchase of any Loan be deposited in such accounts pursuant to SUBSECTION 4.03(iiSections 3.05(c), any amounts deposited pursuant to SUBSECTION 4.03(iii3.23, 4.01(a)(i) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv)Section 4.06(a) of this Agreement, plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer, the Special Servicer (only with respect to subclause (B), below) or the Trustee, (A) for Advances made thereby with respect to Mortgage Loans (other than Workout-Delayed Reimbursement Amounts) and any Servicing Fees related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and additional Servicing Compensation earned hereunderany related Advance Interest Amounts), the Master Servicer’s right to reimburse any such Person pursuant to this clause (ii)(A) being limited to late collections of the particular item which was the subject of the related Advance, Penalty Charges, Condemnation Proceeds, REO Proceeds, Insurance Proceeds and Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made, if applicable; provided that (x) prior to the time any Advance is reimbursed, Advance Interest Amounts may be reimbursed solely from Penalty Charges collected on the related Mortgage Loan, and (y) at the time any Advance (other than Workout Delayed Reimbursement Amounts) is reimbursed, Advance Interest Amounts on such reimbursed Advance shall be payable first from Penalty Charges collected on the related Mortgage Loan and, to the extent such Penalty Charges are insufficient, then from general collections on deposit in the Collection Account, (B) to the extent not reimbursed pursuant to Section 3.14 of this Agreement, for Advances and any related Advance Interest Amounts (or portion thereof) that have been deemed to be Nonrecoverable Advances or are not recovered from recoveries in respect of the related Mortgage Loan and Advance Interest Amounts thereon, first, out of the principal portion of general collections on the Mortgage Loans and REO Properties, and second, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any election in its sole discretion to defer reimbursement thereof pursuant to Section 3.27 of this Agreement, out of other collections on the Mortgage Loans and REO Properties, and (C) for Workout-Delayed Reimbursement Amounts and Advance Interest Amounts thereon, first, out of the principal portion of the general collections on the Mortgage Loans and REO Properties, net of such amounts being reimbursed pursuant to clause (B) above, and second, upon a determination by the Master Servicer, the Special Servicer or the Trustee, as applicable, that a Workout-Delayed Reimbursement Amount is a Nonrecoverable Advance, in the same manner as Nonrecoverable Advances may be reimbursed;
(iii) to pay itself any unreimbursed Expense Advances on or before each Master Servicer Remittance Date to the Master Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee with respect to Mortgage Loans (to the extent that not otherwise required to be applied against Prepayment Interest Shortfalls), and Special Servicing Compensation (if any), respectively, in respect of the collections immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related LoanMortgage Loan and to pay from time to time to the Master Servicer in accordance with Section 3.07(b) of this Agreement any interest or investment income earned on funds deposited in the Collection Account and, for which such Expense Advances were madein the case of the Special Servicing Fee, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment of such Expense Advances, but excluding any Monthly Paymentsgeneral collections;
(iv) to withdraw any amount received from an Obligor that is recoverable and sought to be recovered as a voidable preference by a trustee in bankruptcy pursuant to the United States Bankruptcy Code in accordance with a finalSection 2.03 of this Agreement, nonappealable order to reimburse the Trustee or the Special Servicer, out of general collections on the Mortgage Loans and related REO Properties (including with respect to the Non-Serviced Mortgage Loans) for any unreimbursed expense reasonably incurred by the Trustee or the Special Servicer in connection with the enforcement of a court having competent jurisdictionMortgage Loan Seller’s obligations under Section 6(e) of the related Loan Purchase Agreement, together with interest thereon at the Advance Rate, but only to the extent that such expenses are not otherwise reimbursable;
(v) to pay out of general collections on the Mortgage Loans and related REO Properties, for costs and expenses incurred by the Trust Fund with respect to the Mortgage Loans and related REO Properties pursuant to Sections 3.04(a) and 3.10(e) of this Agreement and to pay Liquidation Expenses out of related Liquidation Proceeds pursuant to Section 3.11 of this Agreement;
(vi) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Certificate Administrator, the Special Servicer, the Operating Advisor, CREFC® or the Depositor, as applicable, for unpaid Additional Trust Fund Expenses (other than Advance Interest Amounts), unpaid Trustee/Certificate Administrator Fees, unpaid Servicing Fees (but only if the Mortgage Loan has been liquidated or a Final Recovery Determination has been made with respect thereto), unpaid Special Servicing Compensation, unpaid Operating Advisor Fees, unpaid Operating Advisor Consulting Fees (but not with respect to Non-Serviced Mortgage Loans, and only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor), unpaid CREFC® Intellectual Property Royalty License Fees and other unpaid items incurred by or owing to such Person pursuant to the second sentence of Sections 3.07(c), 3.08(a), 3.08(b), 3.10, 3.12(c), 3.16(a), 6.03, 7.04, 8.05(a), 8.05(b), 8.05(d) or 11.07 of this Agreement, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vi) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement;
(vii) to transfer to the Certificate Administrator for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Certificate Administrator to be necessary to pay any applicable federal, state or local taxes imposed on either Trust REMIC under the circumstances and to the extent described in Section 4.05 of this Agreement;
(viii) to make such payments and reimbursements out of Penalty Charges and Modification Fees on deposit in such Custodial Account as are contemplated by Section 3.14 of this Agreement;
(ix) to withdraw any funds amount deposited in into the Collection Account that were was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; andor
(vix) to clear and terminate the Collection Account upon the termination pursuant to Section 9.01 of this Agreement with Agreement. The Master Servicer shall also be entitled to make withdrawals from time to time, from the Collection Account of amounts necessary for the payments or reimbursement of amounts required to be paid to the Other Master Servicer, Other Special Servicer, the Other Certificate Administrator or Other Trustee, as applicable, by the holders of each Non-Serviced Mortgage Loan pursuant to each Co-Lender Agreement. In the absence of manifest error, the Master Servicer may conclusively rely on the request for payments contemplated by the preceding sentence. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (i)-(ix) above. The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Operating Advisor, the Trustee and the Certificate Administrator, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of an officer of the Special Servicer, an officer of the Operating Advisor or a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor), the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is entitled (unless such payment to the Special Servicer, the Operating Advisor, the Trustee or the Certificate Administrator, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis. The Master Servicer shall pay to, subject to Section 3.01(h)(i), the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or the Other Trustee, as applicable, from the Collection Account on the Master Servicer Remittance Date amounts permitted to be paid to the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or the Other Trustee, as applicable, therefrom based upon an Officer’s Certificate received from the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or the Other Trustee, as applicable, on the first Business Day following the immediately preceding Determination Date, describing the item and amount to which the Other Master Servicer, the Other Special Servicer, the Other Certificate Administrator or the Other Trustee, as applicable, is entitled. The Master Servicer may rely conclusively on any such certificate and shall have no duty to re-calculate the amounts stated therein. The Trustee, the Certificate Administrator, the Operating Advisor, the Depositor, CREFC®, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), Trustee/Certificate Administrator Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, Operating Advisor Fees, Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fees are actually received from the related Mortgagor(s)), CREFC® Intellectual Property Royalty License Fees and (for each of such Persons other than CREFC®) their respective expenses hereunder (including without limitation Additional Trust Fund Expenses) to the extent such fees, indemnity amounts and expenses are to be reimbursed or paid from amounts on deposit therein being in the Collection Account pursuant to this Agreement (and to have such amounts paid directly to third party contractors for any invoices submitted to the Trustee, the Master Servicer or the Special Servicer, as directed by the Servicerapplicable).
(b) All remittances The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account any and all amounts received by the Certificate Administrator in accordance with Section 3.06(a)(i) of funds by Subservicer this Agreement. If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the preceding sentence is required to be delivered hereunder, the Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited therein pursuant to the provisions of this Agreement shall be made by wire transfer (including, without limitation, Section 3.06(a)(i) of immediately available funds. The Subservicer shall not retain any cash or investment in this Agreement), then the Collection Account for a period in excess of twelve (12) months and cash deposited therein shall be considered withdrawn pursuant to subsection (a) above to the Servicer on a first-inCertificate Administrator shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Certificate Administrator has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by fax transmission sent to fax number (000) 000-0000 (or such alternative number provided by the ServicerMaster Servicer to the Certificate Administrator in writing) and by telephone at telephone No. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer (000) 000-0000 (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Certificate Administrator in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In day; provided, however, that the case of a Servicer error, Master Servicer will correct pay the error Certificate Administrator interest on or before such late payment at the Remittance Date in Prime Rate until such late payment is received by the month following the month in which such discrepancy is identifiedCertificate Administrator.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj14)
Permitted Withdrawals from the Collection Account. (a) The Subservicer shall withdraw or cause to be withdrawn funds Master Servicer may make withdrawals from the Collection Account only as described below (the order set forth below not constituting an order of priority for the following purposes:such withdrawals):
(i) to effect the Remittance remit to the Servicer on or before 1:00 p.m. Dallas, Texas time on the Remittance Date of (A) all Revenues received by Subservicer during the preceding calendar month, plus any amounts then on Trustee for deposit in the Collection Lower-Tier Distribution Account, the Interest Reserve Account that are attributable and the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited in the repurchase of any Loan Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account pursuant to SUBSECTION 4.03(iiSection 4.01(a)(i), any amounts deposited pursuant to SUBSECTION 4.03(iiiSection 4.06(a) and any interest and investment income earned during the preceding calendar month pursuant to SUBSECTION 4.03(iv)Section 3.23 of this Agreement, plus (B) any amount which would exceed the twelve (12) month time limit in subsection (b) below, less (c) the amounts set forth in clauses (ii) through (vi) belowrespectively;
(ii) to pay itself or reimburse the Master Servicer or the Trustee, (A) for Advances made thereby with respect to Mortgage Loans that are not part of a Whole Loan (other than Workout-Delayed Reimbursement Amounts) and any Servicing Fees related Advance Interest Amounts (provided that the Trustee shall have priority with respect to such payment or reimbursement of any such Advances and additional Servicing Compensation earned hereunderany related Advance Interest Amounts), the Master Servicer’s right to reimburse any such Person pursuant to this clause (ii)(A) being limited to late collections (including cure payments by related Companion Interest Holders) of the particular item which was the subject of the related Advance, Penalty Charges and Liquidation Proceeds on or in respect of the particular Mortgage Loan or REO Property respecting which such Advance was made; if applicable; provided that (x) prior to the time any Advance is reimbursed, Advance Interest Amounts may be reimbursed solely from Penalty Charges collected on the related Mortgage Loan, and (y) at the time any Advance (other than Workout Delayed Reimbursement Amounts) is reimbursed, Advance Interest Amounts on such reimbursed Advance shall be payable first from Penalty Charges collected on the related Mortgage Loan, and, to the extent such Penalty Charges are insufficient, then from general collections on deposit in the Collection Account, (B) to the extent not reimbursed pursuant to Section 3.14(c)(i) of this Agreement, for Advances and any related Advance Interest Amounts (or portion thereof) that have been deemed to be Nonrecoverable Advances or are not recovered from such recoveries in respect of the related Mortgage Loan or REO Property after a Final Recovery Determination to the extent not recovered from the related Whole Loan Custodial Account and Advance Interest Amounts thereon, first, out of the principal portion of general collections on the Mortgage Loans and REO Properties, and second, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any election in its sole discretion to defer reimbursement thereof pursuant to Section 3.26 of this Agreement, out of other collections on the Mortgage Loans and REO Properties and, (C) for Workout-Delayed Reimbursement Amounts and Advance Interest Amounts thereon, first, out of the principal portion of the general collections on the Mortgage Loans and REO Properties, net of such amounts being reimbursed pursuant to (B) above and second, upon a determination by the Master Servicer or the Trustee, as applicable, that a Workout-Delayed Reimbursement Amount is a Nonrecoverable Advance, in the same manner as Nonrecoverable Advances may be reimbursed;
(iii) to pay itself apply or deposit in the Excess Fees Reserve Account any unreimbursed Expense Advances Penalty Charges not applied pursuant to the extent that the collections from the related Loanclause (ii) above, for which such Expense Advances were made, have been received by Subservicer, including any collections from Insurance Proceeds, Liquidation Proceeds and such other amounts received from the related Obligor in repayment pursuant to Section 3.14(a) of such Expense Advances, but excluding any Monthly Paymentsthis Agreement;
(iv) to withdraw any amount received from an Obligor pay on or before each Master Servicer Remittance Date to the Master Servicer and the Special Servicer, as applicable, as compensation, the aggregate unpaid Servicing Fee with respect to Mortgage Loans that is recoverable and sought are not part of a Whole Loan (to the extent not otherwise required to be recovered as a voidable preference by a trustee applied against Prepayment Interest Shortfalls), and Special Servicing Compensation (if any), respectively, in bankruptcy pursuant respect of the immediately preceding Interest Accrual Period, to be paid, in the case of the Servicing Fee, from interest received on the related Mortgage Loan and to pay from time to time to the United States Bankruptcy Code Master Servicer in accordance with a final, nonappealable order Section 3.07(b) of a court having competent jurisdiction;
(v) to withdraw this Agreement any interest or investment income earned on funds deposited in the Collection Account and, in the case of the Special Servicing Fee, from general collections; provided that were with respect to the Whole Loan, such Special Servicing Fee with respect to the related Mortgage Loan shall first be paid pursuant to Section 3.06A(a)(iii) of this Agreement and if not paid pursuant thereto, shall be paid from the Collection Account as provided in this clause (iii);
(v) in accordance with Section 2.03 of this Agreement, to reimburse the Trustee or the Special Servicer, out of general collections on the Mortgage Loans and related REO Properties for any unreimbursed expense reasonably incurred by the Trustee or the Special Servicer in connection with the enforcement of a Mortgage Loan Seller’s obligations under Section 6(e) of the related Loan Purchase Agreement, together with interest thereon at the Advance Rate, but only to the extent that such expenses are not otherwise reimbursable;
(vi) to pay out of general collections on the Mortgage Loans and related REO Properties, for costs and expenses incurred by the Trust Fund with respect to the Mortgage Loans and related REO Properties pursuant to Section 3.04(a) and Section 3.10(e) of this Agreement and to pay Liquidation Expenses out of related Liquidation Proceeds pursuant to Section 3.11 of this Agreement (provided that with respect to each Whole Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(vi) of this Agreement to the extent related to such Whole Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vi));
(vii) to the extent not reimbursed or paid pursuant to any other clause of this Section 3.06, to reimburse or pay the Master Servicer, the Trustee, the Special Servicer, the Operating Advisor or the Depositor, as applicable, for unpaid Additional Trust Fund Expenses (other than Advance Interest Amounts), Trustee Fees, unpaid Servicing Fees (but only if the Mortgage Loan has been liquidated or a Final Recovery Determination has been made with respect thereto), unpaid Special Servicing Compensation, unpaid Operating Advisor Fees, unpaid Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor) and other unpaid items incurred by such Person pursuant to the second sentence of Section 3.07(c), Section 3.08(a), Section 3.08(b), Section 3.10, Section 3.12(c), Section 3.16(a), Section 6.03, Section 7.04, Section 8.05(a), Section 8.05(b), Section 8.05(d) or Section 11.07 of this Agreement, or any other provision of this Agreement pursuant to which such Person is entitled to reimbursement or payment from the Trust Fund, in each case only to the extent expressly reimbursable under such Section, it being acknowledged that this clause (vii) shall not be deemed to modify the substance of any such Section, including the provisions of such Section that set forth the extent to which one of the foregoing Persons is or is not entitled to payment or reimbursement (provided that with respect to each Whole Loan, such expenses shall first be reimbursed pursuant to Section 3.06A(vii) of this Agreement to the extent related to such Whole Loan and if not reimbursed pursuant thereto, shall be paid from the Collection Account as provided in this clause (vii));
(viii) to transfer to the Trustee for deposit in one or more separate, non-interest bearing accounts any amount reasonably determined by the Trustee to be necessary to pay any applicable federal, state or local taxes imposed on either Trust REMIC under the circumstances and to the extent described in Section 4.05 of this Agreement;
(ix) to withdraw any amount deposited into the Collection Account that was not required to be deposited therein (such as Servicing Compensation) or were deposited therein in error or that constituted Insurance Proceeds the FHA seeks to reclaim on the grounds that a Loan that was the subject of an FHA Claim is found not to conform to FHA Regulationstherein; andor
(vix) to clear and terminate the Collection Account upon the termination pursuant to Section 9.01 of this Agreement Agreement. If and to the extent that the Master Servicer has reimbursed itself pursuant to clauses (a)(ii), (a)(vi) or (a)(vii) above for an expense with respect to a Whole Loan that represents the related Companion Interest’s allocable share of such cost or expense, the Master Servicer shall use efforts consistent with the Servicing Standard to collect such amounts from the Companion Interest Holder and deposit all such amounts collected from or on behalf of the Companion Noteholder into the Collection Account. The Master Servicer shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from the Collection Account pursuant to subclauses (ii)-(xi) above. The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Operating Advisor and the Trustee, as applicable, from the applicable Collection Account, amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of an officer of the Special Servicer, an officer of the Operating Advisor or a Responsible Officer of the Trustee, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor), the Operating Advisor, the Trustee, as the case may be, is entitled (unless such payment to the Special Servicer, the Operating Advisor or the Trustee, as the case may be, is clearly required pursuant to this Agreement, in which case a written statement is not required). The Master Servicer may rely conclusively on any such written statement and shall have no duty to recalculate the amounts stated therein. The parties seeking payment pursuant to this Section shall each keep and maintain a separate accounting for the purpose of justifying any request for withdrawal from each Collection Account, on a loan by loan basis. The Trustee, the Operating Advisor, the Depositor, the Special Servicer and the Master Servicer shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Fees (including investment income), or Trustee Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, Operating Advisor Fees, Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fees are actually received from the related Mortgagor(s)) and their respective expenses hereunder (including without limitation Additional Trust Fund Expenses) to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit therein being paid as directed by in the Servicer.
(b) All remittances of funds by Subservicer to Servicer Collection Account pursuant to this Agreement shall be made (and to have such amounts paid directly to third party contractors for any invoices approved by wire transfer of immediately available fundsthe Trustee, the Master Servicer or the Special Servicer, as applicable). The Subservicer Trustee shall, upon receipt, deposit in the applicable Lower-Tier Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Reserve Account any and all amounts received by the Trustee in accordance with Section 3.06(a)(i) of this Agreement. If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date or on such other date as any amount referred to in the foregoing clause (i) is required to be delivered hereunder, the Master Servicer shall not retain any cash or investment have delivered to the Trustee for deposit in the Collection applicable Lower-Tier Distribution Account, the Interest Reserve Account for a period in excess of twelve (12) months and cash the Excess Liquidation Proceeds Reserve Account the amounts required to be deposited therein shall be considered withdrawn pursuant to subsection the provisions of this Agreement (aincluding, without limitation, Section 3.06(a)(i) above to of this Agreement), then the Servicer on a first-inTrustee shall, first-out basis.
(c) The funds held in the Collection Account may be invested (to the extent practicable) in Permitted Instrumentsthat a Responsible Officer of the Trustee has such knowledge, as directed in writing provide notice of such failure to the Subservicer Master Servicer by facsimile transmission sent to telecopy No. [_____] (or such alternative number provided by the ServicerMaster Servicer to the Trustee in writing) and by telephone at telephone No. In any case, funds in the Collection Account must be available for withdrawal without penalty, and any Permitted Instruments must mature or otherwise be available for withdrawal not later than one Business Day immediately preceding the Remittance Date next following the date of such investment and shall not be sold or disposed of prior to its maturity. All Permitted Instruments in which funds in the Collection Account are invested must be held by or registered in the name of Servicer [_____] (or such other name or names as designated alternative number provided by Servicer.
(d) The amount remitted to the Master Servicer shall agree with the amount in the Remittance Reconciliation Report submitted by Subservicer with respect to such Remittance Date. Every effort will be made by Servicer and Subservicer to resolve discrepancies prior to the subsequent Remittance Date; however, Trustee in such cases where this is not possible, Servicer and Subservicer will diligently continue to work to identify any remaining discrepancies. In the case of a Subservicer error, Subservicer shall submit an amended Remittance Reconciliation Report that accurately reflects the amounts which should have been remitted on the related Remittance Date, and remit any discrepancy in cash to Servicer in accordance with Servicer's request writing) as soon as possible following identification of possible, but in any event before 5:00 p.m., New York City time, on such discrepancy. In day; provided, however, that the case of a Servicer error, Master Servicer will correct pay the error Trustee interest on or before such late payment at the Remittance Date in prime rate until such late payment is received by the month following the month in which such discrepancy is identifiedTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)