Permitted Withdrawals From. the Collection Account, the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account (a) Each Master Servicer may, from time to time, make withdrawals from the applicable Collection Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals): (i) to remit to the Trustee for deposit in the Lower-Tier Distribution Account or Post-ARD Additional Interest Distribution Account as provided in Section 3.04(b), the Master Servicer Remittance Amount with respect to such Master Servicer for each Master Servicer Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances pursuant to Section 4.03(a); (ii) to reimburse itself, the Trustee or any Fiscal Agent, as applicable, for un▇▇▇▇▇▇▇▇▇▇ ▇&▇ ▇dvances (to the extent not previously reimbursed in the form of a cure payment from the B Loan Holder) made thereby (in each case, with its own funds), with respect to those Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or any successor REO Loans in respect thereof, such Master Servicer's, the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (ii) with respect to any P&I Advance (other than Nonrecoverable P&I Advances, which are reimbursable pursuant to clause (vii) below) being limited to amounts that represent Late Collections of interest and principal received in respect of the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees); (iii) to pay to itself earned and unpaid Master Servicing Fees with respect to those Mortgage Loans as to which it is the applicable Master Servicer and/or any REO Mortgage Loans in respect thereof, such Master Servicer's right to payment pursuant to this clause (iii) with respect to any such Mortgage Loan or such REO Mortgage Loan being limited to collections of interest thereon or with respect thereto; (iv) to pay the applicable Special Servicer, out of general collections on the Mortgage Loans in, and any REO Properties relating to, earned and unpaid Special Servicing Fees in respect of each related Specially Serviced Mortgage Loan and related REO Mortgage Loan, but only if and to the extent that such Special Servicing Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer; (v) to pay the applicable Special Servicer (or, if applicable, any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled pursuant to, and from the sources contemplated by, the second and third paragraphs of Section 3.11(c), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer; (vi) to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made thereby (in each case, with its own funds), the applicable Master Servicer's, the applicable Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (vi) with respect to any Servicing Advance (other than Nonrecoverable Servicing Advances, which are reimbursable pursuant to clause (vii) below) being limited to (A) payments made by the related Borrower that are allocable to cover the item in respect of which such Servicing Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property as to which such Servicing Advance was made; (vii) (A) first, to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of general collections on the Mortgage Loans and any REO Properties, for any unreimbursed Advances made thereby that have been determined to be Nonrecoverable Advances, and (B) second, if such Master Servicer shall have received from the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such unreimbursed Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretion; (viii) to pay itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, any Advance Interest then due and owing to such Person, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related Advance was made, as and to the extent contemplated by Section 3.26; (ix) to the extent that, during any Collection Period, such Master Servicer has reimbursed or is reimbursing itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c), and insofar as payment has not already been made, and the related Default Charges then on deposit in the Collection Account are not sufficient to make such payment pursuant to clause (viii) above, to pay itself, such Special Servicer, the Trustee or such Fiscal Agent, as the case may be, out of general collections on the Mortgage Loans and any REO Properties, any related Advance Interest accrued and payable on the portion of such Advance so reimbursed or being reimbursed; (x) to pay any outstanding expense, other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is the applicable Master Servicer and that, if paid from a source other than Default Charges on such Mortgage Loan or the related REO Mortgage Loan, as the case may be, would constitute an Additional Trust Fund Expense, such payment to be made, as and to the extent contemplated by Section 3.26, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to such expense; (xi) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing Compensation, in each case on deposit in the Collection Account from time to time; (xii) to pay any unpaid Liquidation Expenses incurred with respect to any related Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer, such payments to be made, first, out of Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Mortgage Loan or REO Property, as the case may be, and then, out of general collections on other Mortgage Loans and any REO Properties; (xiii) to pay, in accordance with Section 3.11(i), out of general collections on the Mortgage Loans and any REO Properties relating thereto, certain servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer that would, if advanced, constitute Nonrecoverable Servicing Advances; (xiv) to pay, out of general collections on the Mortgage Loans and any REO Properties, costs and expenses incurred by the Trust pursuant to Section 3.09(c) with respect to any Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer (other than the costs of environmental testing, which are to be covered by, and reimbursable as, a Servicing Advance); (xv) to pay itself, either Special Servicer, the Depositor, the Trustee, any Fiscal Agent, or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any amounts payable to any such Person pursuant to Section 6.03, Section 7.01(b), Section 8.05(b), or Section 8.13, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicer; (xvi) to pay, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any reasonable out-of-pocket cost or expense (including the reasonable fees of tax accountants and attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii) in connection with providing advice to a Special Servicer with respect to any REO Property as to which such Master Servicer is the applicable Master Servicer; (xvii) to pay to each Master Servicer, each Special Servicer, the Trustee, any Fiscal Agent or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(a), it being acknowledged that this clause (xvii) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made; (xviii) to pay itself, either Special Servicer, a Mortgage Loan Seller, a Certificateholder or any other particular Person, as the case may be, with respect to each Mortgage Loan as to which such Master Servicer is the applicable Master Servicer and that was previously purchased or otherwise removed from the Trust Fund by such Person pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase; (xix) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement; (xx) to reimburse itself for any prior Advance, including any interest accrued and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure payment; (xxi) to transfer Excess Liquidation Proceeds to the Excess Liquidation Proceeds Account in accordance with Section 3.04(d); (xxii) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property; (xxiii) to pay, out of general collections, any and all federal, state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier REMIC; (xxiv) to pay for the recording cost of this Agreement; (xxv) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due on the Mortgage Loans on or before their respective Due Dates in March 2003 or, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement pursuant to Section 2.03(b); (xxvi) to withdraw amounts deposited in such Collection Account in error; and (xxvii) to clear and terminate such Collection Account at the termination of this Agreement pursuant to Section 9.01. If amounts on deposit in either Collection Account at any particular time (after withdrawing any portion of such amounts deposited in such Collection Account in error) are insufficient to satisfy all payments, reimbursements and remittances to be made therefrom as set forth in clauses (ii) through (xviii), above, then the corresponding withdrawals from such Collection Account shall be made in the following priority and subject to the following rules: (y) if the payment, reimbursement or remittance is to be made from a specific source of funds, then such payment, reimbursement or remittance shall be made from that specific source of funds on a pro rata basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds; and (z) if the payment, reimbursement or remittance can be made from any funds on deposit in such Collection Account, then (following any withdrawals made from such Collection Account in accordance with the immediately preceding clause (y) above) such payment, reimbursement or remittance shall be made from the general funds remaining on a pro rata basis with any and all other payments, reimbursements or remittances to be made from such general funds; provided that amounts payable pursuant to clauses (vii) and (ix) shall be paid, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable pursuant to clause (xv) shall be paid after the amounts specified in the preceding proviso but prior to any other such payments, reimbursements or remittances; and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection Account pursuant to any of clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of a Collection Account pursuant to either of clauses (viii) and (ix) above, shall be made (to the extent of their respective entitlements to such reimbursements and/or payments): first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the applicable Master Servicer and the applicable Special Servicer. No party hereto shall be entitled to payment or reimbursement of any amount from the Collection Account with respect to any A Loan or related REO Property for which it can be reimbursed out of amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Account and, in the case of the B Loans: (A) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant to this Agreement and is allocable to the related B Note pursuant to the A/B Intercreditor Agreement, and the applicable Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01; (B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1)
Permitted Withdrawals From. the Collection Account, the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account.
(a) Each The Master Servicer may, from time to time, make withdrawals from the applicable Collection Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier Distribution Account or Post-ARD Additional Interest Distribution Account as provided in Section 3.04(b), the Master Servicer Remittance Amount with respect to such Master Servicer for each Master Servicer Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances with respect to the Mortgage Pool pursuant to Section 4.03(aSECTION 4.03(A);
(ii) to reimburse itselfany Fiscal Agent, the Trustee or any Fiscal Agentitself, as applicablein that order, for un▇▇▇▇▇▇unreimbursed P&I Advances made by that Person (in each case, ▇▇▇▇ ▇&▇▇ ▇dvances (to the extent not previously reimbursed in the form of a cure payment from the B Loan Holder▇▇ ▇▇nds) made thereby (in each case, with its own funds), hereunder with respect to those the Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or Pool, any successor REO Loans in respect thereof, such Master ServicerFiscal Agent's, the Trustee's and any Fiscal Agentthe Master Servicer's, as the case may be, respective rights to reimbursement pursuant to this clause CLAUSE (iiII) with respect to any such P&I Advance (other than Nonrecoverable P&I Advancesbeing limited, which are reimbursable pursuant to clause (vii) below) being limited however, to amounts that represent Late Collections of interest and principal received in respect of the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees with respect to those each Mortgage Loans Loan and REO Loan to but not including the latest Due Date for such Mortgage Loan or REO Loan, as to which it is the applicable Master Servicer and/or any REO Mortgage Loans in respect thereofcase may be, such the Master Servicer's right rights to payment pursuant to this clause CLAUSE (iiiIII) with respect to any particular Mortgage Loan or successor REO Loan being limited, however, to amounts received on or in respect of such Mortgage Loan (whether in the form of payments, Insurance Proceeds, Condemnation Proceeds or such Liquidation Proceeds) or successor REO Mortgage Loan being limited to collections (whether in the form of REO Revenues, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds) that are allocable as interest thereon or with respect theretothereon;
(iv) to pay to the applicable Special Servicer, out of such general collections on the Mortgage Loans in, and any REO Properties relating toas are then on deposit in the Collection Account, earned and unpaid Special Servicing Fees in with respect of to each related Specially Serviced Mortgage Loan and related each REO Loan that relates to an Administered REO Property to but not including the latest Due Date for such Specially Serviced Mortgage Loan or REO Loan, but only if and to as the extent that such Special Servicing Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicercase may be;
(v) to pay the applicable Special Servicer (or, if applicable, any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled with respect to any Serviced Mortgage Loan or Administered REO Property pursuant to, and from the sources contemplated by, the second and third paragraphs of Section 3.11(cSECTION 3.11(C), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(vi) to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicablethe Trustee, itself or the Special Servicer, in that order, for any unreimbursed Servicing Advances made thereby by that Person (in each case, with its own funds)) hereunder with respect to any Mortgage Loan or REO Property, the applicable Master Servicer's, the applicable Special Servicerany Fiscal Agent's, the Trustee's, the Master Servicer's and any Fiscal Agentthe Special Servicer's, as the case may be, respective rights to reimbursement pursuant to this clause CLAUSE (viVI) with respect to any such Servicing Advance (other than Nonrecoverable Servicing Advancesbeing limited, which are reimbursable pursuant to clause (vii) below) being limited however, to (A) payments made by the related Borrower that are allocable to cover the item in respect of which such Servicing Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property as to which such Servicing Advance was made;
(vii) (A) first, to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicablethe Trustee, out of general collections on itself or the Mortgage Loans and any REO Properties, for any unreimbursed Advances made thereby that have been determined to be Nonrecoverable Advances, and (B) second, if such Master Servicer shall have received from the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicablethat order, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such any unreimbursed Advances made by that Person (in each case, with its own funds) hereunder that have been determined to be Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretionAdvances;
(viii) to pay itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, any unpaid Advance Interest then due and owing to accrued on Advances made by such Person, such payment to be made, as and to the extent contemplated by SECTION 1.04, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related subject Advance was made, as and to the extent contemplated by Section 3.26;
(ix) to the extent that, during any Collection Period, such that the Master Servicer has reimbursed or is reimbursing itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, the Trustee, itself or the Special Servicer, as applicable, for any unreimbursed Advance (regardless of whether such reimbursement is pursuant to clause CLAUSE (iiII), (viVI) or (viiVII) above or pursuant to Section 3.03(cSECTION 3.03(C) or SECTION 3.03(D)), and insofar as payment has not already been mademade out of related Default Charges, and the related Default Charges then on deposit in the Collection Account are not sufficient to make such payment payment, pursuant to clause CLAUSE (viiiVIII) above, to pay itself, such the Special Servicer, the Trustee or such Fiscal Agent, as the case may be, first out of the remaining Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if any, from the Mortgage Loan to which the Advance relates, and then out of such general collections on the Mortgage Loans and any REO PropertiesProperties as are then on deposit in the Collection Account, any related Advance Interest accrued and payable on the portion of such Advance so reimbursed or being reimbursed;
(x) to pay (A) any outstanding expenseexpenses that were incurred by the Special Servicer in connection with its inspecting, pursuant to SECTION 3.12(A), any Mortgaged Property securing a Specially Serviced Mortgage Loan or any Administered REO Property or (B) any other outstanding expenses incurred on behalf of the Trust with respect to any Mortgage Loan or REO Property (other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is the applicable Master Servicer covered by CLAUSE (VIII) above, and that, if paid from a source other than Default Charges on such Mortgage Loan or the related REO Mortgage LoanSpecial Servicing Fees, as the case may be, would constitute an Workout Fees and Liquidation Fees) that will likely otherwise become Additional Trust Fund ExpenseExpenses, such payment to be made, as and to the extent contemplated by Section 3.26SECTION 1.04, out of Default Charges collected on the related Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to such expenseand then from Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if any, from the related Mortgage Loan or REO Loan;
(xi) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing Compensation, in each case on deposit in the Collection Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect to any related Serviced Mortgage Loan or Administered REO Property as to which such Master Servicer is the applicable Master ServicerProperty, such payments to be made, first, out of Insurance Proceeds, Condemnation Proceeds or Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Serviced Mortgage Loan or Administered REO Property, as the case may be, and then, out of such general collections on other Mortgage Loans and any REO PropertiesProperties as are then on deposit in the Collection Account;
(xiii) to pay, in accordance with Section 3.11(iSECTION 3.11(I), out of such general collections on the Mortgage Loans and any REO Properties relating theretoas are then on deposit in the Collection Account, certain servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of such general collections on the Mortgage Loans and any REO PropertiesProperties as are then on deposit in the Collection Account, for costs and expenses incurred by the Trust Fund pursuant to Section 3.09(cSECTION 3.09(C) with respect to any Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer (other than the those costs of environmental testingthat are, which are as expressly set forth in SECTION 3.09(C), to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, either the Special Servicer, the Depositor, the Trustee, any Fiscal Agent, or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of such general collections on the Mortgage Loans and any REO Properties relating theretoas are then on deposit in the Collection Account, any amounts expenses, reimbursements or indemnities payable to any such Person pursuant to Section SECTION 6.03, Section 7.01(bSECTION 7.01(B), Section 8.05(bSECTION 8.05(B), or Section SECTION 8.13, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicerapplicable;
(xvi) to pay, out of such general collections on the Mortgage Loans and any REO Properties relating theretoas are then on deposit in the Collection Account, for the cost of recording this Agreement in accordance with SECTION 11.02(A);
(xvii) to pay, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the Collection Account, to the [Separately Serviced Mortgage Loan] Master Servicer, the holder of the [Separately Serviced Mortgage Loan] PARI PASSU Companion Loan or the holder of the [Separately Serviced Mortgage Loan] Subordinate Companion Loan, any reasonable out-of-pocket cost amount payable or expense reimbursable to such party pursuant to the terms of either of the [Separately Serviced Mortgage Loan] Intercreditor Agreements;
(xviii) to pay, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the Collection Account, for (A) any fees earned and/or expenses (including the reasonable fees of tax accountants and attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iiiSECTION 3.17(A)(III) in connection with providing advice to a the Special Servicer, (B) any reasonable expense (including reasonable attorneys' fees and disbursements) that the Special Servicer incurs pursuant to its assuming the defense of the Controlling Class Representative in accordance with respect to SECTION 3.23(E) and (C) any REO Property as to which such fee earned by the Master Servicer is or the applicable Master ServicerTrustee for making a Fair Value Determination in respect of any Specially Designated Defaulted Mortgage Loan pursuant to SECTION 3.18(B);
(xviixix) to pay to each the Master Servicer, each the Special Servicer, the Trustee, any Fiscal Agent or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense out of the Trust Fund Collection Account under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(aSECTION 3.05(A), it being acknowledged that this clause CLAUSE (xviiXIX) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made;
(xviiixx) to pay itself, either the Special Servicer, a Mortgage Loan Seller, a Certificateholder Controlling Class Certificateholder, the Sole Certificateholder(s) or any other particular Person, as the case may be, with respect to each Mortgage Loan as to which such Master Servicer is the applicable Master Servicer and that was Loan, if any, previously purchased or otherwise removed from the Trust Fund by such Person Person(s) pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase;
(xix) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement;
(xx) to reimburse itself for any prior Advance, including any interest accrued and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure paymentpurchase or other removal;
(xxi) to transfer any Excess Liquidation Proceeds on deposit in such Collection Account to the Excess Liquidation Proceeds Account in accordance with Section 3.04(dSECTION 3.04(D);; and
(xxii) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property;
(xxiii) to pay, out of general collections, any and all federal, state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier REMIC;
(xxiv) to pay for the recording cost of this Agreement;
(xxv) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due on the Mortgage Loans on or before their respective Due Dates in March 2003 or, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement pursuant to Section 2.03(b);
(xxvi) to withdraw amounts deposited in such Collection Account in error; and
(xxvii) to clear and terminate such the Collection Account at the termination of this Agreement pursuant to Section 9.01SECTION 9.
01. If amounts on deposit in either the Collection Account at any particular time (after withdrawing any portion of such amounts deposited in such the Collection Account in error) are insufficient to satisfy all payments, reimbursements and remittances to be made therefrom as set forth in clauses CLAUSES (iiII) through (xviii), XXI) above, then the corresponding withdrawals from such the Collection Account shall be made in the following priority and subject to the following rules: (yA) if the payment, reimbursement or remittance is to be made from a specific source of funds, then such payment, reimbursement or remittance shall be made from that specific source of funds on a pro rata PRO RATA basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds, provided that where, as in CLAUSES (II) and (VI), an order of priority is set forth to govern the application of funds withdrawn from the Collection Account pursuant to such clauses, payments, reimbursements or remittances pursuant to any such clause shall be made in such order of priority to the extent of available funds; and (zB) if the payment, reimbursement or remittance can be made from any funds on deposit in such the Collection Account, then (following any withdrawals made from such the Collection Account in accordance with the immediately preceding clause CLAUSE (yA) above) such payment, reimbursement or remittance shall be made from the general funds remaining on deposit in the Collection Account on a pro rata PRO RATA basis with any and all other payments, reimbursements or remittances to be made from such general funds; provided , PROVIDED that amounts payable where, as in CLAUSE (VII), an order of priority is set forth to govern the application of funds withdrawn from the Collection Account pursuant to clauses (vii) and (ix) shall be paidsuch clause, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable remittances pursuant to such clause (xv) shall be paid after made in such order of priority to the amounts specified extent of available funds. The Master Servicer shall keep and maintain separate accounting records, on a loan-by-loan and property-by-property basis when appropriate, in connection with any withdrawal from the preceding proviso but prior to any other such payments, reimbursements or remittances; and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection Account pursuant to any of clauses CLAUSES (ii), II) through (vi) and (viiXXI) above, and any payments of interest thereon out of a Collection Account pursuant to either of clauses (viii) and (ix) above, . The Master Servicer shall be made (pay to the extent of their respective entitlements to such reimbursements and/or payments): first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the applicable Master Special Servicer and the applicable Special Servicer. No party hereto shall be entitled to payment or reimbursement of any amount from the Collection Account with respect on each Master Servicer Remittance Date amounts permitted to be paid to the Special Servicer therefrom based upon an Officer's Certificate received from the Special Servicer on the first Business Day following the immediately preceding Determination Date, describing the item and amount to which the Special Servicer is entitled. The Master Servicer may rely conclusively on any A such certificate and shall have no duty to re-calculate the amounts stated therein. The Special Servicer shall keep and maintain separate accounting for each Specially Serviced Mortgage Loan or related and Administered REO Property Property, on a loan-by-loan and property-by-property basis, for which it can be reimbursed out the purpose of amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Account and, in the case of the B Loans:justifying any request thereby for withdrawal from a Collection Account.
(Ab) the applicable Master Servicer shall be entitled to make transfers The Trustee shall, from time to time, make withdrawals from the related A/B Loan Pair Custodial Distribution Account for each of the following purposes, to the portion extent not previously paid (the order set forth below not constituting an order of its Collection Account that does not constitute priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution Date pursuant to SECTION 4.01;
(ii) to pay itself, pursuant to SECTION 8.05(A), the A/B Loan Pair Custodial AccountTrustee's Fee for each Distribution Date;
(iii) to pay itself, any Fiscal Agent or any of their respective directors, officers, members, managers, employees and agents, as the case may be, any amounts necessary payable or reimbursable to any such Person pursuant to SECTIONS 8.05(B) and/or 8.13(A);
(iv) to pay for the payments cost of the Opinions of Counsel sought by the Trustee as contemplated by SECTION 11.01(A) or reimbursement of amounts described 11.01(C) in connection with any one or more of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant amendment to this Agreement requested by the Trustee which amendment is in furtherance of the rights and is allocable interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on the Trust or on the assets or transactions of the Trust, together with all incidental costs and expenses, and any and all expenses relating to tax audits, if and to the related B Note extent that either (A) none of the parties hereto are liable therefor pursuant to SECTION 10.01(B) and/or SECTION 10.01(F) or (B) any such Person that may be so liable has failed to timely make the A/B Intercreditor Agreementrequired payment;
(vi) to pay itself interest or other income earned on deposits in the Distribution Account, in accordance with SECTION 3.06(B) (but only to the extent of the Net Investment Earnings, if any, with respect to the Distribution Account for each Collection Period);
(vii) to transfer Interest Reserve Amounts in respect of the Interest Reserve Loans to the Interest Reserve Account as and when required by SECTION 3.04(C); and
(viii) to clear and terminate the Distribution Account at the termination of this Agreement pursuant to SECTION 9.01.
(c) On the Master Servicer Remittance Date in March of each year (commencing in March ____), and in any event on the applicable Master Servicer Remittance Date that occurs in the same calendar month as the Final Distribution Date, the Trustee shall also be entitled to make transfers withdraw from the Interest Reserve Account and deposit in the Distribution Account all Interest Reserve Amounts in respect of the Interest Reserve Loans then on deposit in the Interest Reserve Account. In addition, the Trustee shall, from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described make
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Permitted Withdrawals From. the Collection Principal and Interest ----------------------------------------------------- Account, . ------- The Servicer shall withdraw funds from the Distribution Account, Principal and Interest Account for the Interest Reserve Account and the Excess Liquidation Proceeds Accountfollowing purposes:
(a) Each Master Servicer mayprovided that each Series of Notes is in its Revolving Period, from time to time, make withdrawals from remit to the applicable Collection Indenture Trustee for deposit in the Funding Account for any that portion of the following purposes (the order Principal Collections as may be set forth below not constituting in an order of priority for such withdrawals):Issuer Request;
(ib) to remit to the Indenture Trustee on each Determination Date for deposit in into the Lower-Tier Note Distribution Account or Post-ARD Additional Interest Distribution Account as provided in Section 3.04(b)Account, the Master Servicer Remittance Amount with respect to such Master Servicer Available Funds for each Master Servicer the related Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse itself, less the Trustee or any Fiscal Agent, as applicable, for un▇▇▇▇▇▇▇▇▇▇ ▇&▇ ▇dvances (amount transferred to the extent not previously reimbursed in the form of a cure payment from the B Loan Holder) made thereby (in each case, with its own funds), with respect to those Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or any successor REO Loans in respect thereof, such Master Servicer's, the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (ii) with respect to any P&I Advance (other than Nonrecoverable P&I Advances, which are reimbursable Funding Account pursuant to clause (viia) below) being limited to amounts that represent Late Collections of interest and principal received in respect of the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees)above;
(iii) to pay to itself earned and unpaid Master Servicing Fees with respect to those Mortgage Loans as to which it is the applicable Master Servicer and/or any REO Mortgage Loans in respect thereof, such Master Servicer's right to payment pursuant to this clause (iii) with respect to any such Mortgage Loan or such REO Mortgage Loan being limited to collections of interest thereon or with respect thereto;
(iv) to pay the applicable Special Servicer, out of general collections on the Mortgage Loans in, and any REO Properties relating to, earned and unpaid Special Servicing Fees in respect of each related Specially Serviced Mortgage Loan and related REO Mortgage Loan, but only if and to the extent that such Special Servicing Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(v) to pay the applicable Special Servicer (or, if applicable, any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled pursuant to, and from the sources contemplated by, the second and third paragraphs of Section 3.11(c), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(vi) to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made thereby (in each case, with its own funds), the applicable Master Servicer's, the applicable Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (vi) with respect to any Servicing Advance (other than Nonrecoverable Servicing Advances, which are reimbursable pursuant to clause (vii) below) being limited to (A) payments made by the related Borrower that are allocable to cover the item in respect of which such Servicing Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property as to which such Servicing Advance was made;
(vii) (A) first, to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of general collections on the Mortgage Loans and any REO Properties, for any unreimbursed Advances made thereby that have been determined to be Nonrecoverable Advances, and (B) second, if such Master Servicer shall have received from the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such unreimbursed Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretion;
(viii) to pay itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, any Advance Interest then due and owing to such Person, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related Advance was made, as and to the extent contemplated by Section 3.26;
(ix) to the extent that, during any Collection Period, such Master Servicer has reimbursed or is reimbursing itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c), and insofar as payment has not already been made, and the related Default Charges then on deposit in the Collection Account are not sufficient to make such payment pursuant to clause (viii) above, to pay itself, such Special Servicer, the Trustee or such Fiscal Agent, as the case may be, out of general collections on the Mortgage Loans and any REO Properties, any related Advance Interest accrued and payable on the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is the applicable Master Servicer and that, if paid from a source other than Default Charges on such Mortgage Loan or the related REO Mortgage Loan, as the case may be, would constitute an Additional Trust Fund Expense, such payment to be made, as and to the extent contemplated by Section 3.26, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to such expense;
(xi) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing Compensation, in each case on deposit in the Collection Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect to any related Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer, such payments to be made, first, out of Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Mortgage Loan or REO Property, as the case may be, and then, out of general collections on other Mortgage Loans and any REO Properties;
(xiii) to pay, in accordance with Section 3.11(i), out of general collections on the Mortgage Loans and any REO Properties relating thereto, certain servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and any REO Properties, costs and expenses incurred by the Trust pursuant to Section 3.09(c) with respect to any Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer (other than the costs of environmental testing, which are to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, either Special Servicer, the Depositor, the Trustee, any Fiscal Agent, or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any amounts payable to any such Person pursuant to Section 6.03, Section 7.01(b), Section 8.05(b), or Section 8.13, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicer;
(xvi) to pay, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any reasonable out-of-pocket cost or expense (including the reasonable fees of tax accountants and attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii) in connection with providing advice to a Special Servicer with respect to any REO Property as to which such Master Servicer is the applicable Master Servicer;
(xvii) to pay to each Master Servicer, each Special Servicer, the Trustee, any Fiscal Agent or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(a), it being acknowledged that this clause (xvii) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made;
(xviii) to pay itself, either Special Servicer, a Mortgage Loan Seller, a Certificateholder or any other particular Person, as the case may be, with respect to each Mortgage Loan as to which such Master Servicer is the applicable Master Servicer and that was previously purchased or otherwise removed from the Trust Fund by such Person pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase;
(xix) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement;
(xxc) to reimburse itself for any prior Advanceaccrued unpaid Servicing Fees and for unreimbursed Servicing Advances to the extent deposited in the Principal and Interest Account (and not netted from Scheduled Payments received). The Servicer's right to reimbursement for unpaid Servicing Fees and, except as provided in the following, Servicing Advances shall be limited to Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds and such other amounts as may be collected by the Servicer from the Obligor or otherwise relating to the Commercial Loan in respect of which such unreimbursed amounts are owed. The Servicer's right to reimbursement for Servicing Advances in excess of such amounts shall be limited to any late collections of interest received on the Commercial Loans generally, including Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds and any interest accrued other amounts; provided, -------- however, that the Servicer's right to such reimbursement pursuant hereto shall ------- be subordinate to the rights of the Noteholders and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure paymentHedge Counterparties;
(xxid) to transfer Excess Liquidation Proceeds 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 Excess Liquidation Proceeds Account United States Bankruptcy Code in accordance with Section 3.04(d)a final, nonappealable order of a court having competent jurisdiction;
(xxiie) to make investments in Permitted Instruments;
(f) to withdraw any funds deposited in the Principal and Interest Account that were not permitted or required to be deposited therein or were deposited therein in error;
(g) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement itself servicing compensation pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property;
(xxiii) to pay, out of general collections, any and all federal, state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier REMIC;
(xxiv) to pay for the recording cost of this Agreement;
(xxv) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due on the Mortgage Loans on or before their respective Due Dates in March 2003 or, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement pursuant to Section 2.03(b);
(xxvi) to withdraw amounts deposited in such Collection Account in error6.03 hereof; and
(xxviih) to clear and terminate such Collection the Principal and Interest Account at upon the termination of this Agreement pursuant to in accordance with Section 9.0110.01. If amounts on deposit in So long as no Default or Servicer Termination Event shall have occurred and be continuing, and consistent with any requirements of the Code, the Principal and Interest Accounts shall either Collection be maintained with an Eligible Deposit Account at any particular time (after withdrawing any portion of such amounts deposited in such Collection Account in error) are insufficient to satisfy all payments, reimbursements and remittances to be made therefrom as an interest-bearing account meeting the requirements set forth in clauses (ii) through (xviiiSection 4.03(a), aboveor the funds held therein may be invested by the Servicer (to the extent practicable) in Permitted Instruments, then as directed in writing by the corresponding withdrawals from such Collection Account shall be made Servicer. In either case, funds in the Principal and Interest Account must be available for withdrawal without penalty, and any Permitted Instruments must mature not later than the Business Day immediately preceding the Determination Date next following priority and subject to the following rules: date of such investment (y) except that if such Permitted Instrument is an obligation of the payment, reimbursement or remittance is to be made from a specific source of fundsinstitution that maintains such account, then such paymentPermitted Instrument shall mature not later than such Determination Date) and shall not be sold or disposed of prior to its maturity. All Permitted Instruments must be held by or registered in the name of "MCG Credit Corporation, reimbursement as Servicer, in trust for the registered holders of MCG Master Trust Notes and Certificates." All interest or remittance shall be made other earnings from that specific source of funds on a pro rata basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds; and (z) if the payment, reimbursement or remittance can be made from any funds on deposit in such Collection Account, then the Principal and Interest Account (following or any withdrawals made from such Collection Permitted Instruments thereof) shall constitute part of the Available Funds and be deemed Interest Collections. The amount of any losses incurred in connection with the investment of funds in the Principal and Interest Account in accordance with the immediately preceding clause (y) above) such payment, reimbursement or remittance Permitted Instruments shall be made from the general funds remaining on a pro rata basis with any and all other payments, reimbursements or remittances to be made from such general funds; provided that amounts payable pursuant to clauses (vii) and (ix) shall be paid, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable pursuant to clause (xv) shall be paid after the amounts specified deposited in the preceding proviso but prior to any other such payments, reimbursements or remittances; Principal and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection Interest Account pursuant to any of clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of a Collection Account pursuant to either of clauses (viii) and (ix) above, shall be made (to by the extent of their respective entitlements to such reimbursements and/or payments): first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the applicable Master Servicer and the applicable Special Servicer. No party hereto shall be entitled to payment or from its own funds immediately as realized without reimbursement of any amount from the Collection Account with respect to any A Loan or related REO Property for which it can be reimbursed out of amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Account and, in the case of the B Loans:
(A) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant to this Agreement and is allocable to the related B Note pursuant to the A/B Intercreditor Agreement, and the applicable Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described therefor.
Appears in 1 contract
Permitted Withdrawals From. the Collection Account, the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account
(a) Each The Master Servicer may, from time to time, make withdrawals from the applicable Collection Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier Distribution Account or Post-ARD Additional Interest Distribution Account as provided in Section 3.04(b), the Master Servicer Remittance Amount with respect to such Master Servicer for each Master Servicer Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse itself, itself or the Trustee or any Fiscal AgentTrustee, as applicable, for un▇▇▇▇▇▇▇▇▇▇ ▇&▇ ▇dvances unreimbursed P&I Advances (to the extent not previously reimbursed in the form ▇▇▇ ▇▇▇▇ of a cure payment from the B Loan Holder) made thereby (in each case, with its own funds), with respect to those Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or any successor REO Loans in respect thereof, such Master Servicer's's and, the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (ii) with respect to any P&I Advance (other than Nonrecoverable P&I Advances, which are reimbursable pursuant to clause (vii) below) being limited to amounts that represent Late Collections of interest and principal received in respect of the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees);; provided, however, that if such P&I Advance becomes a Workout-Delayed Reimbursement Amount, then such P&I Advance shall thereafter be reimbursed from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties on deposit in the Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (vii) below,
(iii) to pay to itself and/or the holder of the Excess Servicing Fee Right earned and unpaid Master Servicing Fees Fees, as allocable between the Master Servicer and such holder (if different from the Master Servicer) with respect to those Mortgage Loans as to which it is the applicable Master Servicer and/or any REO Mortgage Loans in respect thereof, such Master Servicer's right to payment pursuant to this clause (iii) with respect to any such Mortgage Loan or such REO Mortgage Loan being limited to collections of interest thereon or amounts received that are allocable as a recovery of interest thereon or with respect thereto;
(iv) to pay the applicable Special Servicer, out of general collections on the Mortgage Loans in, and any REO Properties relating to, earned and unpaid Special Servicing Fees in respect of each related Specially Serviced Mortgage Loan and related REO Mortgage Loan, but only if and to the extent that such Special Servicing Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(v) to pay the applicable Special Servicer (or, if applicable, any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled pursuant to, and from the sources contemplated by, the second and third paragraphs of Section 3.11(c), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(vi) to reimburse itself, the applicable Special Servicer, Servicer or the Trustee or any Fiscal AgentTrustee, as applicable, for any unreimbursed Servicing Advances made thereby (in each case, with its own funds), the applicable Master Servicer's, the applicable Special Servicer's, 's and the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (vi) with respect to any Servicing Advance (other than Nonrecoverable Servicing Advances, which are reimbursable pursuant to clause (vii) below) being limited to (A) payments made by the related Borrower that are allocable to cover the item in respect of which such Servicing Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property as to which such Servicing Advance was made; provided, however, that if such Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then such Servicing Advance shall thereafter be reimbursed from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties on deposit in the Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (vii) below, first from such amounts that are allocated to the Loan Group to which such Mortgage Loan belongs and second from such amounts that are allocated to the other Loan Group;
(vii) (A) first, to reimburse itself, the applicable Special Servicer, Servicer or the Trustee or any Fiscal AgentTrustee, as applicable, out of general collections on the Mortgage Loans and any REO Properties, for (A) any unreimbursed Advances made thereby that have been determined to be Nonrecoverable Advances, and (B) second, if such Master Servicer shall have received from the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such unreimbursed Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretiondiscretion and (B) Workout-Delayed Reimbursement Amounts, out of the principal portion of the general collections on the Mortgage Loans and REO Properties, net of such amounts being reimbursed pursuant to (A) above; first from such amounts that are allocated to the Loan Group to which such Mortgage Loan belongs and second from such amounts that are allocated to the other Loan Group;
(viii) to pay itself, the applicable Special Servicer, Servicer or the Trustee or any Fiscal AgentTrustee, as applicable, any Advance Interest then due and owing to such Person, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related Advance was made, as and to the extent contemplated by Section 3.26;
(ix) 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 relating to a Mortgage Loan and giving rise to a repurchase obligation of any Mortgage Loan Seller under Section 7 of the Mortgage Loan Purchase Agreement, including, any expenses arising out of the enforcement of the repurchase obligation, each such Person's right to reimbursement pursuant to this clause (ix) 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 (e) of the definition of Purchase Price;
(x) subject to Section 2.03(g), to reimburse itself, the Trustee or the Special Servicer, as the case may be, first out of Liquidation Proceeds and Insurance and Condemnation Proceeds with respect to the subject Mortgage Loan and then out of general collections on the Mortgage Loans and REO Properties, for any unreimbursed expense reasonably incurred by such Person relating to a Mortgage Loan in connection with the enforcement of the Mortgage Loan Seller's obligations under Section 7 of the Mortgage Loan Purchase Agreement, but only to the extent that such expenses are not reimbursable pursuant to clause (ix) above or otherwise;
(xi) to the extent that, during any Collection Period, such Master Servicer has reimbursed or is reimbursing itself, the applicable Special Servicer, Servicer or the Trustee or any Fiscal AgentTrustee, as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c), and insofar as payment has not already been made, and the related Default Charges then on deposit in the Collection Account are not sufficient to make such payment pursuant to clause (viii) above, to pay itself, such Special Servicer, Servicer or the Trustee or such Fiscal AgentTrustee, as the case may be, out of general collections on the Mortgage Loans and any REO Properties, any related Advance Interest accrued and payable on the portion of such Advance so reimbursed or being reimbursed;
(xxii) to pay any outstanding expense, other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is the applicable Master Servicer and that, if paid from a source other than Default Charges on such Mortgage Loan or the related REO Mortgage Loan, as the case may be, would constitute an Additional Trust Fund Expense, such payment to be made, as and to the extent contemplated by Section 3.26, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to such expense;
(xixiii) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing Compensation, in each case on deposit in the Collection Account from time to time;
(xiixiv) to pay any unpaid Liquidation Expenses incurred with respect to any related Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer, such payments to be made, first, out of Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Mortgage Loan or REO Property, as the case may be, and then, out of general collections on other Mortgage Loans and any REO Properties;
(xiiixv) to pay, in accordance with Section 3.11(i), out of general collections on the Mortgage Loans and any REO Properties relating thereto, certain servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xivxvi) to pay, out of general collections on the Mortgage Loans and any REO Properties, costs and expenses incurred by the Trust pursuant to Section 3.09(c) with respect to any Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer (other than the costs of environmental testing, which are to be covered by, and reimbursable as, a Servicing Advance);
(xvxvii) to pay itself, either the Special Servicer, the Depositor, the Trustee, any Fiscal Agent, Trustee or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any amounts payable to any such Person pursuant to Section 6.03, Section 7.01(b), Section 8.05(b), or Section 8.13, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicerapplicable;
(xvixviii) to pay, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any reasonable out-of-pocket cost or expense (including the reasonable fees of tax accountants and attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii) in connection with providing advice to a the Special Servicer with respect to any REO Property as to which such Master Servicer is the applicable Master ServicerProperty;
(xviixix) to pay to each the Master Servicer, each the Special Servicer, the Trustee, any Fiscal Agent Trustee or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(a), it being acknowledged that this clause (xviixix) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made;
(xviiixx) to pay itself, either the Special Servicer, a Mortgage Loan Seller, a Certificateholder or any other particular Person, as the case may be, with respect to each Mortgage Loan as to which such Master Servicer is the applicable Master Servicer and that was previously purchased or otherwise removed from the Trust Fund by such Person pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase;
(xixxxi) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement;
(xxxxii) to reimburse itself for any prior Advance, including any interest accrued and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure payment;
(xxixxiii) to transfer Excess Liquidation Proceeds to the Excess Liquidation Proceeds Account in accordance with Section 3.04(d);
(xxiixxiv) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property;
(xxiiixxv) to pay, out of general collections, any and all federal, state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier REMIC;
(xxivxxvi) to pay for the recording cost of this Agreement;
(xxvxxvii) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due on the Mortgage Loans on or before their respective Due Dates in March 2003 June 2006 or, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement pursuant to Section 2.03(b);
(xxvixxviii) to withdraw amounts deposited in such Collection Account in error; and
(xxviixxix) to clear and terminate such Collection Account at the termination of this Agreement pursuant to Section 9.01. If amounts on deposit in either Collection Account at any particular time (after withdrawing any portion of such amounts deposited in such Collection Account in error) are insufficient to satisfy all payments, reimbursements and remittances to be made therefrom as set forth in clauses (ii) through (xviii), above, then the corresponding withdrawals from such Collection Account shall be made in the following priority and subject to the following rules: (y) if the payment, reimbursement or remittance is to be made from a specific source of funds, then such payment, reimbursement or remittance shall be made from that specific source of funds on a pro rata basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds; and (z) if the payment, reimbursement or remittance can be made from any funds on deposit in such Collection Account, then (following any withdrawals made from such Collection Account in accordance with the immediately preceding clause (y) above) such payment, reimbursement or remittance shall be made from the general funds remaining on a pro rata basis with any and all other payments, reimbursements or remittances to be made from such general funds; provided that amounts payable pursuant to clauses (vii) and (ix) shall be paid, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable pursuant to clause (xv) shall be paid after the amounts specified in the preceding proviso but prior to any other such payments, reimbursements or remittances; and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection Account pursuant to any of clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of a Collection Account pursuant to either of clauses (viii) and (ix) above, shall be made (to the extent of their respective entitlements to such reimbursements and/or payments): first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the applicable Master Servicer and the applicable Special Servicer. No party hereto shall be entitled to payment or reimbursement of any amount from the Collection Account with respect to any A Loan or related REO Property for which it can be reimbursed out of amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Account and, in the case of the B Loans:
(A) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts necessary for the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant to this Agreement and is allocable to the related B Note pursuant to the A/B Intercreditor Agreement, and the applicable Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described in clause (A) above to which the holder of an A Note is entitled under the related A/B Intercreditor Agreement (including in respect of interest, principal and Prepayment Premiums due in respect of the A Note (whether or not by operation of any provision of the related A/B Intercreditor Agreement that entitles the holder of such A Note to receive remittances in amounts calculated without regard to any modification, waiver or amendment of the economic terms of such A Note);
(C) the Master Servicer shall on the Business Day following receipt of payment from the related Borrower, remit to the B Loan Holder any amounts on deposit in such A/B Loan Pair Custodial Account (net of amounts permitted or required to be transferred therefrom as described in clauses (A) and/or (B) above), to the extent that the B Loan Holder is entitled thereto under the related A/B Intercreditor Agreement (including by way of the operation of any provision of the related A/B Intercreditor Agreement that entitles the B Loan Holder to reimbursement of cure payments made by it). Expenses incurred with respect to any B Loan shall be allocated in accordance with the related A/B Intercreditor Agreement. The Master Servicer shall keep and maintain a separate accounting for each Mortgage Loan and B Loan for the purpose of justifying any withdrawal or transfer from its Collection Account and any A/B Loan Pair Custodial Account. The Master Servicer shall not be permitted to withdraw any funds from the portion of its Collection Account that does not constitute t
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C3)
Permitted Withdrawals From. the Collection Certificate Account, the ------------------------------------------------------- Distribution Account, the Interest Reserve Account Serviced Whole Loan Custodial Accounts and the Excess ------------------------------------------------------------------------------- Liquidation Proceeds Account. -----------------------------
(a) Each The Master Servicer may, from time to time, make withdrawals from the applicable Collection Certificate Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 1:00 p.m. (New York time) for deposit in into the Lower-Tier Distribution Account or Post-ARD Additional and the Excess Interest Distribution Account as provided in Section 3.04(b)Account, the Master Servicer Remittance Amount with respect for, and, to such Master Servicer for the extent permitted or required by Section 4.03(a), as applicable, any P&I Advances to be made on, each Master Servicer Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances pursuant to Section 4.03(a)Date;
(ii) to reimburse itself, the Trustee Master Servicer or any Fiscal Agentthe Trustee, as applicable, for un▇▇▇▇▇▇▇▇▇▇ ▇&▇ ▇dvances (to the extent not previously reimbursed in the form of a cure payment from the B Loan Holder) unreimbursed P&I Advances made thereby (in each case, with its own funds▇▇▇▇▇), with respect to those Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or any successor REO Loans in respect thereof, such Master ▇▇▇ ▇▇▇ter Servicer's, 's and the Trustee's and any Fiscal Agent's, as the case may be, respective rights to reimbursement pursuant to this clause (ii) with respect to any P&I Advance (other than Nonrecoverable P&I Advances, which are reimbursable pursuant to clause (vii) below) being limited to amounts that represent Late Collections of interest and principal received in respect of the particular Mortgage Loan or REO Mortgage Serviced Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees) (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan to the extent such reimbursement was paid out of collections from the Serviced Whole Loan Custodial Account);
(iii) to pay to itself the Master Servicer earned and unpaid Master Servicing Fees with respect to those Mortgage Loans as to which it is the applicable Master Servicer and/or any REO Mortgage Loans in respect thereofof each Mortgage Loan and REO Serviced Loan (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account), such the Master Servicer's right to payment pursuant to this clause (iii) with respect to any Mortgage Loan or REO Serviced Loan (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account) being payable from, and limited to, amounts received on or in respect of such Mortgage Loan (whether in the form of payments, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds) or such REO Mortgage Serviced Loan being limited to collections (whether in the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that are allocable as a recovery of interest thereon or with respect theretothereon;
(iv) to pay to the applicable Special Servicer, out of general collections on the Mortgage Loans in, and any REO Properties relating toProperties, earned and unpaid Special Servicing Fees in respect of each related Specially Serviced Mortgage Loan and related REO Mortgage Loan, but only if and to Serviced Loan (exclusive of the extent that such Special Servicing Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special ServicerOne Stamford Forum Note B);
(v) to pay to the applicable Special Servicer (or, if applicable, any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled pursuant to, and from the sources contemplated by, the second and third paragraphs of by Section 3.11(c), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(vi) to reimburse itself, the applicable Special Servicer, Servicer or the Trustee or any Fiscal AgentTrustee, as applicable, for any unreimbursed Servicing Advances made thereby (in each case, with its own funds), the applicable Master Servicer's, the applicable Special Servicer's, the Trustee's and any Fiscal Agentor the Special Servicer's, as the case may be, respective rights to reimbursement pursuant to this clause (vi) with respect to any Servicing Advance (other than Nonrecoverable Servicing Advances, which are reimbursable pursuant to clause (vii) below) being limited to (A) payments made by the related Borrower Mortgagor that are allocable to cover the item in respect of which such Servicing Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO Property securing a Whole Loan to the extent such reimbursement was paid out of collections from the Serviced Whole Loan Custodial Account) as to which such Servicing Advance was made;
(vii) (A) first, to reimburse itself, the applicable Special Master Servicer, the Trustee Special Servicer or any Fiscal Agentthe Trustee, as applicable, out of general collections on the Mortgage Loans and any REO Properties, for any unreimbursed Advances made thereby that have been determined to be Nonrecoverable AdvancesAdvances (provided, and (Bthat amounts may be withdrawn over time as hereinafter provided) secondor, if such Master Servicer shall have received from subject to the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicerlimitations contained in the following paragraphs of this Section 3.05(a), either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such unreimbursed Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretionWorkout-Delayed Reimbursement Amounts;
(viii) to pay itselfthe Trustee, the applicable Special Master Servicer, or the Trustee or any Fiscal Agent, Special Servicer as applicable, any Advance Interest then due and owing to such Person, thereto out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related Advance was madePool, as and to the extent contemplated by Section 3.263.27;
(ix) to the extent that, during any Collection Period, such the Master Servicer has reimbursed or is reimbursing itself, the applicable Special Servicer, Servicer and the Trustee or any Fiscal AgentTrustee, as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c)3.03, and insofar as payment has not already been made, and the related Default Charges then on deposit in the Collection Certificate Account are is not sufficient to make such payment pursuant to clause (viii) above, to pay itself, such Special the Master Servicer, the Trustee Special Servicer or such Fiscal Agentthe Trustee, as the case may be, out of general collections on the Mortgage Loans and any REO PropertiesProperties (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO Property securing a Whole Loan to the extent such payment was received out of collections from the Serviced Whole Loan Custodial Account), any related Advance Interest accrued and payable on the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is Serviced Loan (exclusive of each Mortgage Loan or REO Serviced Loan included in the applicable Master Servicer Serviced Whole Loan) and that, if paid from a source other than Default Charges collected on such the Mortgage Loan or the related REO Mortgage Loan, as the case may bePool, would constitute an Additional Trust Fund Expense, such payment to be mademade out of Default Charges collected on the Mortgage Pool, as and to the extent contemplated by Section 3.26, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to such expense3.27;
(xi) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing CompensationCompensation to which it is entitled, in each case from funds on deposit in the Collection Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect to any related Mortgage Loan or REO Property as (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO Property securing a Whole Loan to which the extent such Master Servicer is payment was received out of collections from the applicable Master Servicer, Serviced Whole Loan Custodial Account) such payments to be made, first, out of payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Mortgage Loan or REO Property, as the case may be, and then, out of general collections on other Mortgage Loans and REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO PropertiesProperty securing a Whole Loan to the extent such payment was received out of collections from the Serviced Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general collections on the Mortgage Loans and any REO Properties relating thereto(exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO Property securing a Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account), certain servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and any REO PropertiesProperties (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO Property securing a Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account), costs and expenses incurred by the Trust Fund pursuant to Section 3.09(c) with respect to any Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer (other than the costs of environmental testing, which are to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, either the Special Servicer, the Depositor, the Trustee, any Fiscal Agent, or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of general collections on the Mortgage Loans and any REO Properties relating thereto, any amounts payable to any such Person pursuant to Section 6.03, Section 7.01(b), ) or Section 8.05(b), or Section 8.13, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicerapplicable;
(xvi) to pay, out of general collections on the Mortgage Loans and REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan included in the Serviced Whole Loan or any REO Property securing a Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account), for the cost of recording this Agreement in accordance with Section 12.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and any REO Properties relating thereto(exclusive of any such amount arising in respect of a Mortgage Loan included in the Serviced Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account), any reasonable out-of-pocket cost or expense (including the reasonable fees of tax accountants and attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii3.17(b) in connection with providing advice to a the Special Servicer with respect to any REO Property as to which such Master Servicer is the applicable Master Servicer;
(xviixviii) to pay to each the Master Servicer, each the Special Servicer, the Trustee, any Fiscal Agent Trustee or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(a) (exclusive of any such amount arising in respect of a Mortgage Loan included in the Serviced Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account), it being acknowledged that this clause (xviixviii) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made;
(xviiixix) to pay itselfthe Master Servicer, either the Special Servicer, a the Mortgage Loan Seller, a Controlling Class Certificateholder or any other particular Person, as the case may be, with respect to each Mortgage Loan as (exclusive of any such amount arising in respect of a Mortgage Loan included in the Serviced Whole Loan to which the extent such Master Servicer is payment was paid out of collections from the applicable Master Servicer and that was Serviced Whole Loan Custodial Account), if any, previously purchased or otherwise removed from the Trust Fund by such Person pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase;
(xix) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement;
(xx) to reimburse itself for any prior Advance, including any interest accrued and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure payment;
(xxi) to transfer Excess Liquidation Proceeds (exclusive of any such amount arising in respect of a Mortgage Loan included in the Serviced Whole Loan to the extent such payment was paid out of collections from the Serviced Whole Loan Custodial Account) to the Excess Liquidation Proceeds Account in accordance with Section 3.04(d3.04(c)(iv);
(xxii) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property;
(xxiii) to pay, out of general collections, any and all federal, state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier REMIC;
(xxiv) to pay for the recording cost of this Agreement;
(xxv) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due on the Mortgage Loans on or before their respective Due Dates in March 2003 or, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement pursuant to Section 2.03(b);
(xxvixxi) to withdraw any amounts deposited in such Collection Account in error; and
(xxviixxii) to clear and terminate such Collection the Certificate Account at the termination of this Agreement pursuant to Section 9.01. If amounts on deposit in either Collection the Certificate Account at any particular time (after withdrawing any portion of such amounts deposited in such Collection into the Certificate Account in error) are insufficient to satisfy all payments, reimbursements and remittances to be made therefrom as set forth in clauses (ii) through (xviii), xx) above, then the corresponding withdrawals from such Collection the Certificate Account shall be made in the following priority and subject to the following rules: (yA) if the payment, reimbursement or remittance is to be made from a specific source of funds, then such payment, reimbursement or remittance shall be made from that specific source of funds on a pro rata basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds; and (zB) if the payment, reimbursement or remittance can be made from any funds on deposit in such Collection the Certificate Account, then (following any withdrawals made from such Collection the Certificate Account in accordance with the immediately preceding clause (yA) above) such payment, reimbursement or remittance shall be made from the such general funds remaining on a pro rata basis with any and all other payments, reimbursements or remittances to be made from such general funds; provided that amounts payable pursuant to clauses (vii) and (ix) shall be paid, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable pursuant to clause (xv) shall be paid after the amounts specified in the preceding proviso but prior to any other such payments, reimbursements or remittances; and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection the Certificate Account pursuant to any of clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of a Collection the Certificate Account pursuant to either of clauses (viii) and (ix) above, shall be made (to the extent of their respective entitlements to such reimbursements and/or payments): first, to any Fiscal Agent; the Trustee and second, to the Trustee; and third, pro rata, to the applicable Master Servicer and the applicable Special Servicer. No party hereto The Master Servicer shall be entitled to payment or reimbursement of keep and maintain separate accounting records, on a loan-by-loan basis (and on a property-by-property basis for REO Serviced Loans) when appropriate, in connection with any amount withdrawal from the Collection Certificate Account with respect pursuant to any A Loan or related REO Property for which it can be reimbursed out of clauses (ii) through (xix) above sufficient to determine the amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Account andattributable to REMIC I or, in the case of the B Loans:
(A) the applicable a withdrawal not related to a specific Mortgage Loan, allocable pro rata based on relative aggregate Stated Principal Balances. The Master Servicer shall be entitled pay to make transfers from time the Special Servicer (or to time, third party contractors at the direction of the Special Servicer) from the related A/B Certificate Account amounts permitted to be paid to it (or to such third party contractors) therefrom promptly upon receipt of a certificate of a Servicing Officer of the Special Servicer describing the item and amount to which the Special Servicer (or such third party contractors) is entitled. The Master Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein. The Special Servicer shall keep and maintain separate accounting for each Specially Serviced Loan Pair Custodial Account and REO Property, on a loan-by-loan and property-by-property basis, for the purpose of justifying any request for withdrawal from the Certificate Account. Upon the determination that a previously made Advance is a Nonrecoverable Advance, instead of obtaining reimbursement out of general collections immediately, the Master Servicer, the Special Servicer or the Trustee, as applicable, may, in its sole discretion, elect to obtain reimbursement for such Nonrecoverable Advance over time and the unreimbursed portion of its Collection Account such Advance will accrue interest at the Reimbursement Rate. If such an election to obtain reimbursement over time is made, the Master Servicer, the Special Servicer or the Trustee, as applicable, will, during the first six months after such nonrecoverability determination was made, only seek reimbursement for such Nonrecoverable Advance from collections of principal (with such Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement Amounts). After such initial six months, the Master Servicer, the Special Servicer or the Trustee, as applicable, may continue to seek reimbursement for such Nonrecoverable Advance solely from collections of principal or may seek reimbursement for such Nonrecoverable Advance from general collections, in each case for a period of time not to exceed an additional six months (with such Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement Amounts). In the event that does not constitute the A/B Loan Pair Custodial AccountMaster Servicer, of amounts necessary for the payments Special Servicer or the Trustee, as applicable, wishes to seek reimbursement of amounts described over time after the second six-month period discussed in any one the preceding sentence, then the Master Servicer, the Special Servicer or more of clauses (i)the Trustee, (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant to this Agreement and is allocable to the related B Note pursuant to the A/B Intercreditor Agreement, and the applicable Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described as
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-3)
Permitted Withdrawals From. the Collection Account, the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account.
(a) Each The Master Servicer may, from time to time, make withdrawals from the applicable Collection Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier Distribution Account or Post-ARD Additional Interest Distribution Account as provided in Section 3.04(b), the Master Servicer Remittance Amount with respect to such Master Servicer for each Master Servicer Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances with respect to the Mortgage Pool pursuant to Section 4.03(a);
(ii) to reimburse itselfany Fiscal Agent, the Trustee or any Fiscal Agentitself, as applicablein that order, for un▇▇▇▇▇▇unreimbursed P&I Advances made by that Person (in each case, ▇▇▇▇ ▇&▇▇ ▇dvances (to the extent not previously reimbursed in the form of a cure payment from the B Loan Holder▇▇ ▇▇▇ds) made thereby (in each case, with its own funds), hereunder with respect to those the Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or Pool, any successor REO Loans in respect thereof, such Master ServicerFiscal Agent's, the Trustee's and any Fiscal Agentthe Master Servicer's, as the case may be, respective rights to reimbursement pursuant to this clause (ii) with respect to any such P&I Advance (other than Nonrecoverable P&I Advancesbeing limited, which are reimbursable pursuant to clause (vii) below) being limited however, to amounts that represent Late Collections of interest and principal received in respect of the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees with respect to those each Mortgage Loans Loan and REO Loan to but not including the latest Due Date for such Mortgage Loan or REO Loan, as to which it is the applicable Master Servicer and/or any REO Mortgage Loans in respect thereofcase may be, such the Master Servicer's right rights to payment pursuant to this clause (iii) with respect to any particular Mortgage Loan or successor REO Loan being limited, however, to amounts received on or in respect of such Mortgage Loan (whether in the form of payments, Insurance Proceeds, Condemnation Proceeds or such Liquidation Proceeds) or successor REO Mortgage Loan being limited to collections (whether in the form of REO Revenues, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds) that are allocable as interest thereon or with respect theretothereon;
(iv) to pay to the applicable Special Servicer, out of such general collections on the Mortgage Loans in, and any REO Properties relating toas are then on deposit in the Collection Account, earned and unpaid Special Servicing Fees in with respect of to each related Specially Serviced Mortgage Loan and related each REO Loan that relates to an Administered REO Property to but not including the latest Due Date for such Specially Serviced Mortgage Loan or REO Loan, but only if and to as the extent that such Special Servicing Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicercase may be;
(v) to pay the applicable Special Servicer (or, if applicable, any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled with respect to any Serviced Mortgage Loan or Administered REO Property pursuant to, and from the sources contemplated by, the second and third paragraphs of Section 3.11(c), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(vi) to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicablethe Trustee, itself or the Special Servicer, in that order, for any unreimbursed Servicing Advances made thereby by that Person (in each case, with its own funds)) hereunder with respect to any Mortgage Loan or REO Property, the applicable Master Servicer's, the applicable Special Servicerany Fiscal Agent's, the Trustee's, the Master Servicer's and any Fiscal Agentthe Special Servicer's, as the case may be, respective rights to reimbursement pursuant to this clause (vi) with respect to any such Servicing Advance (other than Nonrecoverable Servicing Advancesbeing limited, which are reimbursable pursuant to clause (vii) below) being limited however, to (A) payments made by the related Borrower that are allocable to cover the item in respect of which such Servicing Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property as to which such Servicing Advance was made;
(vii) (A) first, to reimburse itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicablethe Trustee, out of general collections on itself or the Mortgage Loans and any REO Properties, for any unreimbursed Advances made thereby that have been determined to be Nonrecoverable Advances, and (B) second, if such Master Servicer shall have received from the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicablethat order, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such any unreimbursed Advances made by that Person (in each case, with its own funds) hereunder that have been determined to be Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretionAdvances;
(viii) to pay itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, any unpaid Advance Interest then due and owing to accrued on Advances made by such Person, such payment to be made, as and to the extent contemplated by Section 1.04, out of Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related subject Advance was made, as and to the extent contemplated by Section 3.26;
(ix) to the extent that, during any Collection Period, such that the Master Servicer has reimbursed or is reimbursing itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, the Trustee, itself or the Special Servicer, as applicable, for any unreimbursed Advance (regardless of whether such reimbursement is pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c) or Section 3.03(d)), and insofar as payment has not already been mademade out of related Default Charges, and the related Default Charges then on deposit in the Collection Account are not sufficient to make such payment payment, pursuant to clause (viii) above, to pay itself, such the Special Servicer, the Trustee or such Fiscal Agent, as the case may be, first out of the remaining Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if any, from the Mortgage Loan to which the Advance relates, and then out of such general collections on the Mortgage Loans and any REO PropertiesProperties as are then on deposit in the Collection Account, any related Advance Interest accrued and payable on the portion of such Advance so reimbursed or being reimbursed;
(x) to pay (A) any outstanding expenseexpenses that were incurred by the Special Servicer in connection with its inspecting, pursuant to Section 3.12(a), any Mortgaged Property securing a Specially Serviced Mortgage Loan or any Administered REO Property or (B) any other outstanding expenses incurred on behalf of the Trust with respect to any Mortgage Loan or REO Property (other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is the applicable Master Servicer covered by clause (viii) above, and that, if paid from a source other than Default Charges on such Mortgage Loan or the related REO Mortgage LoanSpecial Servicing Fees, as the case may be, would constitute an Workout Fees and Liquidation Fees) that will likely otherwise become Additional Trust Fund ExpenseExpenses, such payment to be made, as and to the extent contemplated by Section 3.261.04, out of Default Charges collected on the related Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to such expenseand then from Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if any, from the related Mortgage Loan or REO Loan;
(xi) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing Compensation, in each case on deposit in the Collection Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect to any related Serviced Mortgage Loan or Administered REO Property as to which such Master Servicer is the applicable Master ServicerProperty, such payments to be made, first, out of Insurance Proceeds, Condemnation Proceeds or Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Serviced Mortgage Loan or Administered REO Property, as the case may be, and then, out of such general collections on other Mortgage Loans and any REO PropertiesProperties as are then on deposit in the Collection Account;
(xiii) to pay, in accordance with Section 3.11(i), out of such general collections on the Mortgage Loans and any REO Properties relating theretoas are then on deposit in the Collection Account, certain servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of such general collections on the Mortgage Loans and any REO PropertiesProperties as are then on deposit in the Collection Account, for costs and expenses incurred by the Trust Fund pursuant to Section 3.09(c) with respect to any Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer (other than the those costs of environmental testingthat are, which are as expressly set forth in Section 3.09(c), to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, either the Special Servicer, the Depositor, the Trustee, any Fiscal Agent, or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of such general collections on the Mortgage Loans and any REO Properties relating theretoas are then on deposit in the Collection Account, any amounts expenses, reimbursements or indemnities payable to any such Person pursuant to Section 6.03, Section 7.01(b), Section 8.05(b), or Section 8.13, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicerapplicable;
(xvi) to pay, out of such general collections on the Mortgage Loans and any REO Properties relating theretoas are then on deposit in the Collection Account, for the cost of recording this Agreement in accordance with Section 11.02(a);
(xvii) to pay, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the Collection Account, to the [Separately Serviced Mortgage Loan] Master Servicer, the holder of the [Separately Serviced Mortgage Loan] Pari Passu Companion Loan or the holder of the [Separately Serviced Mortgage Loan] Subordinate Companion Loan, any reasonable out-of-pocket cost amount payable or expense reimbursable to such party pursuant to the terms of either of the [Separately Serviced Mortgage Loan] Intercreditor Agreements;
(xviii) to pay, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the Collection Account, for (A) any fees earned and/or expenses (including the reasonable fees of tax accountants and attorneys) incurred by the Trustee pursuant to Section 3.17(a)(iii) in connection with providing advice to a the Special Servicer, (B) any reasonable expense (including reasonable attorneys' fees and disbursements) that the Special Servicer incurs pursuant to its assuming the defense of the Controlling Class Representative in accordance with respect to Section 3.23(e) and (C) any REO Property as to which such fee earned by the Master Servicer is or the applicable Master ServicerTrustee for making a Fair Value Determination in respect of any Specially Designated Defaulted Mortgage Loan pursuant to Section 3.18(b);
(xviixix) to pay to each the Master Servicer, each the Special Servicer, the Trustee, any Fiscal Agent or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense out of the Trust Fund Collection Account under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(a), it being acknowledged that this clause (xviixix) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made;
(xviiixx) to pay itself, either the Special Servicer, a Mortgage Loan Seller, a Certificateholder Controlling Class Certificateholder, the Sole Certificateholder(s) or any other particular Person, as the case may be, with respect to each Mortgage Loan as to which such Master Servicer is the applicable Master Servicer and that was Loan, if any, previously purchased or otherwise removed from the Trust Fund by such Person Person(s) pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase;
(xix) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement;
(xx) to reimburse itself for any prior Advance, including any interest accrued and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure paymentpurchase or other removal;
(xxi) to transfer any Excess Liquidation Proceeds on deposit in such Collection Account to the Excess Liquidation Proceeds Account in accordance with Section 3.04(d);; and
(xxii) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property;
(xxiii) to pay, out of general collections, any and all federal, state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier REMIC;
(xxiv) to pay for the recording cost of this Agreement;
(xxv) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due on the Mortgage Loans on or before their respective Due Dates in March 2003 or, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement pursuant to Section 2.03(b);
(xxvi) to withdraw amounts deposited in such Collection Account in error; and
(xxvii) to clear and terminate such the Collection Account at the termination of this Agreement pursuant to Section 9.01. If amounts on deposit in either the Collection Account at any particular time (after withdrawing any portion of such amounts deposited in such the Collection Account in error) are insufficient to satisfy all payments, reimbursements and remittances to be made therefrom as set forth in clauses (ii) through (xviii), xxi) above, then the corresponding withdrawals from such the Collection Account shall be made in the following priority and subject to the following rules: (yA) if the payment, reimbursement or remittance is to be made from a specific source of funds, then such payment, reimbursement or remittance shall be made from that specific source of funds on a pro rata basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds, provided that where, as in clauses (ii) and (vi), an order of priority is set forth to govern the application of funds withdrawn from the Collection Account pursuant to such clauses, payments, reimbursements or remittances pursuant to any such clause shall be made in such order of priority to the extent of available funds; and (zB) if the payment, reimbursement or remittance can be made from any funds on deposit in such the Collection Account, then (following any withdrawals made from such the Collection Account in accordance with the immediately preceding clause (yA) above) such payment, reimbursement or remittance shall be made from the general funds remaining on deposit in the Collection Account on a pro rata basis with any and all other payments, reimbursements or remittances to be made from such general funds; , provided that amounts payable where, as in clause (vii), an order of priority is set forth to govern the application of funds withdrawn from the Collection Account pursuant to clauses (vii) and (ix) shall be paidsuch clause, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable remittances pursuant to such clause (xv) shall be paid after made in such order of priority to the amounts specified extent of available funds. The Master Servicer shall keep and maintain separate accounting records, on a loan-by-loan and property-by-property basis when appropriate, in connection with any withdrawal from the preceding proviso but prior to any other such payments, reimbursements or remittances; and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection Account pursuant to any of clauses (ii), ) through (vi) and (viixxi) above, and any payments of interest thereon out of a Collection Account pursuant to either of clauses (viii) and (ix) above, . The Master Servicer shall be made (pay to the extent of their respective entitlements to such reimbursements and/or payments): first, to any Fiscal Agent; second, to the Trustee; and third, pro rata, to the applicable Master Special Servicer and the applicable Special Servicer. No party hereto shall be entitled to payment or reimbursement of any amount from the Collection Account with respect on each Master Servicer Remittance Date amounts permitted to be paid to the Special Servicer therefrom based upon an Officer's Certificate received from the Special Servicer on the first Business Day following the immediately preceding Determination Date, describing the item and amount to which the Special Servicer is entitled. The Master Servicer may rely conclusively on any A such certificate and shall have no duty to re-calculate the amounts stated therein. The Special Servicer shall keep and maintain separate accounting for each Specially Serviced Mortgage Loan or related and Administered REO Property Property, on a loan-by-loan and property-by-property basis, for which it can be reimbursed out the purpose of amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Account and, in the case of the B Loans:justifying any request thereby for withdrawal from a Collection Account.
(Ab) the applicable Master Servicer shall be entitled to make transfers The Trustee shall, from time to time, make withdrawals from the related A/B Loan Pair Custodial Distribution Account for each of the following purposes, to the portion extent not previously paid (the order set forth below not constituting an order of its Collection Account that does not constitute priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution Date pursuant to Section 4.01;
(ii) to pay itself, pursuant to Section 8.05(a), the A/B Loan Pair Custodial AccountTrustee's Fee for each Distribution Date;
(iii) to pay itself, any Fiscal Agent or any of their respective directors, officers, members, managers, employees and agents, as the case may be, any amounts necessary payable or reimbursable to any such Person pursuant to Sections 8.05(b) and/or 8.13(a);
(iv) to pay for the payments cost of the Opinions of Counsel sought by the Trustee as contemplated by Section 11.01(a) or reimbursement of amounts described 11.01(c) in connection with any one or more of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant amendment to this Agreement requested by the Trustee which amendment is in furtherance of the rights and is allocable interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on the Trust or on the assets or transactions of the Trust, together with all incidental costs and expenses, and any and all expenses relating to tax audits, if and to the related B Note extent that either (A) none of the parties hereto are liable therefor pursuant to Section 10.01(b) and/or Section 10.01(f) or (B) any such Person that may be so liable has failed to timely make the A/B Intercreditor Agreementrequired payment;
(vi) to pay itself interest or other income earned on deposits in the Distribution Account, in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to the Distribution Account for each Collection Period);
(vii) to transfer Interest Reserve Amounts in respect of the Interest Reserve Loans to the Interest Reserve Account as and when required by Section 3.04(c); and
(viii) to clear and terminate the Distribution Account at the termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year (commencing in March ____), and in any event on the applicable Master Servicer Remittance Date that occurs in the same calendar month as the Final Distribution Date, the Trustee shall also be entitled to make transfers withdraw from the Interest Reserve Account and deposit in the Distribution Account all Interest Reserve Amounts in respect of the Interest Reserve Loans then on deposit in the Interest Reserve Account. In addition, the Trustee shall, from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Permitted Withdrawals From. the Collection Custodial Account, the Distribution Collection Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account.
(a) Each The Master Servicer may, from time to time, make withdrawals from the applicable Collection Custodial Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier Distribution Collection Account or Post-ARD Additional Interest Distribution Account as provided in the amounts required to be so deposited pursuant to the first paragraph of Section 3.04(b), the Master Servicer Remittance Amount with respect to such Master Servicer for each Master Servicer Remittance Date and any amounts that may be applied by such Master Servicer to make P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse itselfthe Fiscal Agent, the Trustee or any Fiscal Agentand itself, as applicablein that order, for un▇▇▇▇▇▇unreimbursed P&I Advances made thereby with respect to any Mortgag▇ ▇▇▇▇ ▇&▇ ▇dvances (to ▇▇ ▇▇rtgage Loan, the extent not previously reimbursed in the form of a cure payment from the B Loan Holder) made thereby (in each case, with its own funds), with respect to those Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and/or any successor REO Loans in respect thereof, such Master ServicerFiscal Agent's, the Trustee's and any Fiscal AgentMaster Servicer's, as the case may be, respective rights to reimbursement pursuant to this clause (ii) with respect to any P&I Advance (other than Nonrecoverable P&I Advances, which are reimbursable pursuant to clause (vii) below) being limited to amounts that represent Late Collections of interest and principal (net of the related Master Servicing Fees and any related Workout Fees or Liquidation Fees) received in respect of the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made (net of related Master Servicing Fees and/or Workout Fees)made;
(iii) to pay to itself earned and unpaid Master Servicing Fees with in respect to those of each Mortgage Loans as to which it is the applicable Master Servicer and/or any Loan and REO Mortgage Loans in respect thereof, such Loan; the Master Servicer's right to payment pursuant to this clause (iii) with respect to any such Mortgage Loan or such REO Mortgage Loan being limited to collections amounts received on or in respect of such Mortgage Loan (whether in the form of payments, Liquidation Proceeds or Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that are allocable as a recovery of interest thereon or with respect theretothereon;
(iv) to pay (A) to the applicable Special Servicer, out of general collections on the Mortgage Loans in, and any REO Properties relating toProperties, earned and unpaid Special Servicing Fees in respect of each related Specially Serviced Mortgage Loan and related REO Mortgage Loan, but only if and (B) to itself, out of general collections on the extent that such Special Servicing Fees relate to Mortgage Loans and/or and REO Properties as Properties, any Master Servicing Fee earned in respect of any Mortgage Loan or REO Mortgage Loan that remains unpaid in accordance with clause (iii) above following a Final Recovery Determination made with respect to which such Special Servicer is Mortgage Loan or the applicable Special Servicerrelated REO Property and the deposit into the Custodial Account of all amounts received in connection therewith;
(v) to pay the applicable Special Servicer (or, if applicable, a predecessor Special Servicer) any predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is entitled pursuant toin respect of each Mortgage Loan, Corrected Mortgage Loan and/or REO Mortgage Loan, as applicable, in the amounts and from the sources contemplated by, the second and third paragraphs of specified in Section 3.11(c), but only if and to the extent that such Special Servicing Fees, Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO Properties as to which such Special Servicer is the applicable Special Servicer;
(vi) to reimburse itself, the applicable Special ServicerFiscal Agent, the Trustee or any Fiscal Agentand itself, as applicablein that order, for any unreimbursed Servicing Advances made thereby (in each case, with its own funds)respect to any Mortgage Loan or REO Property, the applicable Master Servicer's, the applicable Special ServicerFiscal Agent's, the Trustee's and any Fiscal Agent's, as the case may be, Master Servicer's respective rights to reimbursement pursuant to this clause (vi) with respect to any Servicing Advance (other than Nonrecoverable Servicing Advances, which are reimbursable pursuant to clause (vii) below) being limited to (A) payments made by the related Borrower Mortgagor that are allocable to cover the item in respect of which such Servicing Advance was madeAdvance, and (B) Insurance or to Liquidation Proceeds, Condemnation ProceedsInsurance Proceeds (net of Liquidation Fees and Liquidation Expenses payable therefrom), Liquidation Proceeds and, if applicable, REO Revenues received in respect of the particular Mortgage Loan or REO Property as to which such Servicing Advance was made;
(vii) (A) first, to reimburse itself, the applicable Special ServicerFiscal Agent, the Trustee or any Fiscal Agentand itself, as applicablein that order, out of general collections on the Mortgage Loans and any REO Properties, for any unreimbursed Advances made thereby that have been or are determined to be Nonrecoverable Advances, and (B) second, if such Master Servicer shall have received from the other Master Servicer an Officer's Certificate setting forth that (1) such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is entitled to reimbursement for any Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer (and setting forth the nature and amount of such unreimbursed Nonrecoverable Advance and the party entitled to reimbursement therefor) and (2) such other Master Servicer has insufficient funds then on deposit in its Collection Account, then to reimburse such other Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as applicable, out of such general collections on the Mortgage Loans and any REO Properties as are then on deposit in the subject Master Servicer's Collection Account, for such unreimbursed Nonrecoverable Advance made with respect to any of the Mortgage Loans and/or REO Properties as to which such other Master Servicer is the applicable Master Servicer, provided that the applicable Master Servicer may reimburse itself in installments as it may choose in its sole discretion;
(viii) to pay itselfthe Fiscal Agent, the applicable Trustee, itself and the Special Servicer, the Trustee or in that order, any Fiscal Agentinterest accrued and payable in accordance with Section 3.11(g) and 4.03(d), as applicable, on any Advance Interest then due made thereby, the Fiscal Agent's, the Trustee's, the Master Servicer's and owing the Special Servicer's respective rights to payment pursuant to this clause (viii) with respect to interest on any such PersonAdvance being permitted to be satisfied (A) first, out of Default Charges collected on or in respect of the related Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the related Advance was made, as and to the extent contemplated by Section 3.263.25, and (B) then, to the extent that such Default Charges described in the immediately preceding clause (A) are insufficient, but only after such Advance has been reimbursed, out of general collections on the Mortgage Loans and any REO Properties if such Advance has been reimbursed on a prior date;
(ix) to the extent thatpay any unpaid expense that would otherwise become an Additional Trust Fund Expense (other than interest accrued on Advances, during any Collection Period, such Master Servicer has reimbursed or which is reimbursing itself, the applicable Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03(c), and insofar as payment has not already been made, and the related Default Charges then on deposit in the Collection Account are not sufficient to make such payment payable pursuant to clause (viii) above, and other than Special Servicing Fees, Liquidation Fees and Workout Fees), such payment to be made out of Default Charges collected on or in respect of the related Mortgage Loan or REO Mortgage Loan, as to which such expense was incurred, and as to the extent contemplated by Section 3.25.
(x) to pay, out of general collections on the Mortgage Loans and any REO Properties, for costs and expenses incurred by the Trust Fund pursuant to Section 3.09(c) (including the costs of environmental testing and remediation);
(xi) to pay itself, such as additional servicing compensation in accordance with Section 3.11(b), (A) interest and investment income earned in respect of amounts held in the Custodial Account as provided in Section 3.06(b), but only to the extent of the Net Investment Earnings with respect to the Custodial Account for any Collection Period, (B) Prepayment Interest Excesses collected on the Mortgage Pool and (C) Net Default Charges that accrued in respect of Mortgage Loans that are not Specially Serviced Mortgage Loans, and to pay the Special Servicer, as additional special servicing compensation in accordance with Section 3.11(d), Net Default Charges that accrued in respect of Specially Serviced Mortgage Loans and REO Mortgage Loans;
(xii) to pay, out of general collections on the Mortgage Loans and any REO Properties, for the cost of an independent appraiser or other expert in real estate matters retained pursuant to Section 3.09(a), 3.11(h), 3.18(g) or 4.03(c);
(xiii) to pay itself, the Special Servicer, the Trustee Depositor, or such Fiscal Agentany of their respective members, managers, directors, officers, employees and agents, as the case may be, out of general collections on the Mortgage Loans and any REO Properties, any related Advance Interest accrued and amounts payable on the portion of to any such Advance so reimbursed or being reimbursedPerson pursuant to Section 6.03;
(xxiv) to pay, out of general collections on the Mortgage Loans and any REO Properties, for (A) the cost of the Opinion of Counsel contemplated by Section 11.02(a) and (B) the cost of an Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any amendment to this Agreement requested by the Master Servicer or the Special Servicer that protects or is in furtherance of the rights and interests of Certificateholders;
(xv) to pay itself, the Special Servicer, the Depositor, any outstanding expense, Controlling Class Certificateholder or any other than Advance Interest, that was incurred with respect to any related Mortgage Loan or related REO Property as to which such Master Servicer is the applicable Master Servicer and that, if paid from a source other than Default Charges on such Mortgage Loan or the related REO Mortgage LoanPerson, as the case may be, would constitute an Additional Trust Fund Expense, such payment with respect to be made, as and to the extent contemplated by Section 3.26, out of Default Charges collected on the Mortgage Loan or REO each Mortgage Loan, as if any, previously purchased by such Person pursuant to this Agreement, all amounts received thereon subsequent to the case may be, that relates to such expensedate of purchase;
(xi) to pay itself any items of Additional Master Servicing Compensation, and to pay to the applicable Special Servicer any items of Additional Special Servicing Compensation, in each case on deposit in the Collection Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect to any related Mortgage Loan or REO Property as to which such Master Servicer is the applicable Master Servicer, such payments to be made, first, out of Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received in respect of such Mortgage Loan or REO Property, as the case may be, and then, out of general collections on other Mortgage Loans and any REO Properties;
(xiiixvi) to pay, in accordance with Section 3.11(i), out of general collections on the Mortgage Loans and any REO Properties relating theretoProperties, certain any servicing expenses related to the Mortgage Loans and REO Properties as to which such Master Servicer is the applicable Master Servicer expenses, that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xivxvii) on each Master Servicer Remittance Date, to transfer Excess Liquidation Proceeds in respect of the Mortgage Pool to the Trustee, for deposit in the Excess Liquidation Proceeds Account, in accordance with Section 3.04(d); and
(xviii) to pay, out clear and terminate the Custodial Account at the termination of general collections on the Mortgage Loans and any REO Properties, costs and expenses incurred by the Trust this Agreement pursuant to Section 3.09(c9.01. The Master Servicer shall keep and maintain separate accounting records, on a loan-by-loan and property-by-property basis when appropriate, in connection with any withdrawal from the Custodial Account pursuant to clauses (ii) with respect through (xvii) above. The Master Servicer shall pay to the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Trustee or the Fiscal Agent from the Custodial Account, amounts permitted to be paid to the Special Servicer (or to any Mortgage Loan such third party contractor), the Trustee or REO Property as the Fiscal Agent therefrom promptly upon receipt of a written statement of a Servicing Officer of the Special Servicer or of a Responsible Officer of the Trustee or the Fiscal Agent describing the item and amount to which such Master Servicer is the applicable Master Special Servicer (other than or such third party contractor), the costs of environmental testingTrustee or the Fiscal Agent, which are as applicable, is entitled (unless pursuant to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, either this Agreement it is otherwise clear that the Special Servicer, the DepositorTrustee or the Fiscal Agent, as the case may be, is entitled to such amounts, 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 re-calculate the amounts stated therein. The Special Servicer shall keep and maintain separate accounting for each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan and property-by-property basis, for the purpose of justifying any request for withdrawal from the Custodial Account. With respect to each Mortgage Loan for which it makes an Advance, each of the Trustee and Fiscal Agent shall keep and maintain separate accounting, on a loan-by-loan and property-by-property basis, for the purpose of justifying any request for withdrawal from the Custodial Account for reimbursements of Advances or interest thereon.
(b) The Trustee may, from time to time, make withdrawals from the Collection Account for any of the following purposes (in no particular order of priority):
(i) to make distributions to Certificateholders on each Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee, any the Fiscal Agent, Agent or any of their respective directors, officers, members, managers, employees and agents, as the case may be, out of general collections on the Mortgage Loans and any REO Properties relating theretoProperties, any amounts payable or reimbursable to any such Person pursuant to Section 6.037.02, Section 7.01(b), 8.05 and/or Section 8.05(b), or Section 8.138.08, as applicable but only if and to the extent that such amounts relate to Mortgage Loans and/or REO Properties as to which such Master Servicer is the applicable Master Servicerapplicable;
(xviiii) to pay, out of general collections on the Mortgage Loans and any REO Properties relating theretoProperties, any reasonable out-of-pocket for the cost or expense (including of the reasonable fees Opinions of tax accountants and attorneys) incurred Counsel sought by the Trustee pursuant to or the Tax Administrator (A) as provided in clause (iv) of the definition of "Disqualified Organization", (B) as contemplated by Sections 9.02(a)(i), 10.01(i) and 10.02(e), or (C) as contemplated by Section 3.17(a)(iii11.01(a) or 11.01(c) in connection with providing advice any amendment to a Special Servicer with respect to any REO Property as to this Agreement requested by the Trustee which such Master Servicer amendment is in furtherance of the applicable Master Servicerrights and interests of Certificateholders;
(xvii) to pay to each Master Servicer, each Special Servicer, the Trustee, any Fiscal Agent or the Depositor, as the case may be, any amount related to the Mortgage Loans and any REO Properties as to which such Master Servicer is the applicable Master Servicer, that is specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement and to which reference is not made in any other clause of this Section 3.05(a), it being acknowledged that this clause (xvii) shall not be construed to modify any limitation otherwise set forth in this Agreement on the time at which any Person is entitled to payment or reimbursement of any amount or the funds from which any such payment or reimbursement is permitted to be made;
(xviii) to pay itself, either Special Servicer, a Mortgage Loan Seller, a Certificateholder or any other particular Person, as the case may be, with respect to each Mortgage Loan as to which such Master Servicer is the applicable Master Servicer and that was previously purchased or otherwise removed from the Trust Fund by such Person pursuant to or as contemplated by this Agreement, all amounts received thereon subsequent to the date of purchase;
(xix) to pay amounts payable to any B Loan Holder under the related A/B Intercreditor Agreement;
(xx) to reimburse itself for any prior Advance, including any interest accrued and payable thereon, made for which a cure payment from the B Loan Holder has been received, from such cure payment;
(xxi) to transfer Excess Liquidation Proceeds to the Excess Liquidation Proceeds Account in accordance with Section 3.04(d);
(xxii) to pay for the cost of any Opinion of Counsel for purposes of REMIC administration or amending this Agreement pursuant to Section 11.01, in each case, to the extent payable out of the Trust Fund, and to pay for the cost of obtaining any extensions from the IRS in connection with the sale of any REO Property;
(xxiiiiv) to pay, out of general collectionscollections on the Mortgage Loans and any REO Properties, any and all federal, state and local taxes imposed on either any of the Upper-Tier REMIC REMICs created hereunder or Lower-Tier on the assets or transactions of any such REMIC, together with all incidental costs and expenses, to the extent none of the Depositor, the Trustee, the Tax Administrator, the Master Servicer or the Special Servicer is liable therefor pursuant to Section 10.01(j) or Section 10.02(f);
(xxivv) to pay for the recording cost Tax Administrator, out of this Agreement;
(xxv) to pay to the respective Mortgage Loan Sellers, amounts that represent Monthly Payments due general collections on the Mortgage Loans on or before their respective Due Dates in March 2003 orand any REO Properties, in the case of a Replacement Mortgage Loan, on or before the date on which such loan was added any amounts reimbursable to the Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts collected or received by the Trust with respect to such Mortgage Loan after the related date of replacement it pursuant to Section 2.03(b10.01(f) or Section 10.02(b);
(xxvivi) to withdraw pay the Master Servicer any amounts deposited by the Master Servicer in such the Collection Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the Interest Reserve Mortgage Loans to the Interest Reserve Account as and when required by Section 3.04(c); and
(xxviiviii) to clear and terminate such the Collection Account at the termination of this Agreement pursuant to Section 9.01. If The Trustee shall be entitled to withdraw amounts on deposit in either from the Collection Account at any particular time (after withdrawing any portion of such amounts deposited in such Collection Account in error) are insufficient referred to satisfy all payments, reimbursements and remittances to be made therefrom as set forth in clauses (ii) through (xviiivi) above prior to distributing any amounts to the Certificateholders.
(c) On each Master Servicer Remittance Date in March (commencing in March 2003), above, then the corresponding withdrawals Trustee shall withdraw from such the Interest Reserve Account and deposit in the Collection Account shall be made all Interest Reserve Amounts that have been deposited in the following priority Interest Reserve Account in respect of the Interest Reserve Mortgage Loans during January and/or February of the same year in accordance with Section 3.04(c).
(d) On each Master Servicer Remittance Date, the Trustee shall withdraw from the Excess Liquidation Proceeds Account and subject to the following rules: (y) if the payment, reimbursement or remittance is to be made from a specific source of funds, then such payment, reimbursement or remittance shall be made from that specific source of funds on a pro rata basis with any and all other payments, reimbursements and remittances to be made from such specific source of funds; and (z) if the payment, reimbursement or remittance can be made from any funds on deposit in such the Collection Account, then (for distribution on the next following any withdrawals made from such Collection Account in accordance with the immediately preceding clause (y) above) such paymentDistribution Date, reimbursement or remittance shall be made from the general funds remaining on a pro rata basis with any and all other payments, reimbursements or remittances to be made from such general funds; provided that amounts payable pursuant to clauses (vii) and (ix) shall be paid, pro rata, prior to any other such payments, reimbursements or remittances; and provided, further, that amounts payable pursuant to clause (xv) shall be paid after the amounts specified in the preceding proviso but prior to any other such payments, reimbursements or remittances; and provided, further, that any reimbursements of Advances in respect of any particular Mortgage Loan or REO Property out of a Collection Account pursuant to any of clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of a Collection Account pursuant to either of clauses (viii) and (ix) above, shall be made (an amount equal to the extent lesser of their respective entitlements to such reimbursements and/or payments): first(i) the entire amount, to any Fiscal Agent; secondif any, to the Trustee; and third, pro rata, to the applicable Master Servicer and the applicable Special Servicer. No party hereto shall be entitled to payment or reimbursement of any amount from the Collection Account with respect to any A Loan or related REO Property for which it can be reimbursed out of amounts then or thereafter on deposit in the related A/B Loan Pair Custodial Excess Liquidation Proceeds Account andand (ii) the excess, in the case if any, of the B Loans:
aggregate amount distributable on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b) (A) without regard to any amounts payable to the applicable Master Servicer shall be entitled Holders of Residual Interest Certificates), over the Available Distribution Amount for such Distribution Date (calculated without regard to make transfers from time to time, such transfer from the related A/B Loan Pair Custodial Excess Liquidation Proceeds Account to the portion of its Collection Account); provided that on the Master Servicer Remittance Date immediately prior to the Final Distribution Date, the Trustee shall withdraw from the Excess Liquidation Proceeds Account that does not constitute and deposit in the A/B Loan Pair Custodial Collection Account, of for distribution on such Distribution Date, any and all amounts necessary for then on deposit in the payments or reimbursement of amounts described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment or reimbursement described therein arises from or is related solely to an A Loan, is allocable to the related A Loan pursuant to this Agreement and is allocable to the related B Note pursuant to the A/B Intercreditor Agreement, and the applicable Master Servicer shall also be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Excess Liquidation Proceeds Account, of amounts transferred to such related A/B Loan Pair Custodial Account in error, and amounts necessary for the clearing and termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make transfers from time to time, from the related A/B Loan Pair Custodial Account to the portion of its Collection Account that does not constitute the A/B Loan Pair Custodial Account, of amounts not otherwise described .
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CDC Commercial Mortgage Trust 2002-Fx1)