Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied: (i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses; (ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount; (iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance); (iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan; (v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items; (vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow; (vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan; (viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan; (ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan; (x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees); (xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and (xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions. (b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated: (i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses; (ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount; (iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance; (iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan; (v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan; (vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan; (vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and (viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan. (c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan. (d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest. (e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02. (f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property. (g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 9 contracts
Samples: Pooling and Servicing Agreement (COMM 2015-Lc19 Mortgage Trust), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C28), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C29)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Hyper-Amortization Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Posta Hyper-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Interest on an ARD Mortgage a Hyper-Amortization Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Hyper-Amortization Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest Interest) (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C23), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C22), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc26)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.mortgage
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-Lc14)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C27), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C26), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc18)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Serviced Mortgage Loan Group and a Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretionprovisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge other amounts (other than Excess Interest) then due and owing under such Mortgage Loan;
(ix) ; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfthand tenth, in the case of if such Mortgage Loan is an ARD Mortgage Loan after its Anticipated Repayment DateLoan, as a recovery of accrued any Excess Interest then due and unpaid Post-ARD Additional Interest owing on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Loan at the related Mortgage Loan to, Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period month of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02its good faith judgment.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);; and
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;; and
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest[Reserved.]
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C23), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C24), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C23)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permitpermit or require. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or the Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.a
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation principal; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth. The Master Servicer shall, in to the case of an ARD fullest extent permitted by applicable law and the related Mortgage Loan after its Anticipated Repayment Datedocuments, as a recovery apply all payments on and proceeds of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced each Mortgage Loan (or Serviced Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Loan at the related Mortgage Loan to, Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; and fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that any payments, collections and recoveries received by the parties constitute additional servicing compensation payable to the Non-Trust Pooling Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to charges, such amounts shall be allocated by between such parties of those fees and charges as interestare payable to the Master Servicer, principal or other amounts on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the terms and conditions of sole amount that will be paid to the related Intercreditor Agreement Master Servicer and the related Non-Trust-Serviced Pooled Mortgage LoanSpecial Servicer with respect thereto.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp 1999-LTL-1 Commer Loan Pas THR Cer), Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2), Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);; and
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), that payments or proceeds received from by the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio ratio, expressed as a whole number percentage (taken to one decimal place), of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the principal balance of such Serviced the Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced each Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders Holder any out-of-out of pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans (other than REO Mortgage Loans) in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) other than an REO Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Condemnation Proceeds, Insurance Proceeds, Condemnation Liquidation Proceeds, Repurchase Proceeds or Liquidation Proceeds (including any such collections on or in respect payments of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan Substitution Shortfall Amounts shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions of, or if and to the extent that not covered by, such terms authorize the lender to use its discretionexpress provisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, at the related Mortgage Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02Servicer.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Com Mort Ps THR Cer Se 1998-Cf1), Pooling and Servicing Agreement (Morgan Stanley Capital I Inc), Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);; and
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), that payments or proceeds received from by the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio ratio, expressed as a whole number percentage (taken to one decimal place), of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the principal balance of such Serviced the Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;; and
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a the Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any the Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-out of pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C13), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C13)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a the Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), that payments or proceeds received from by the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio ratio, expressed as a whole number percentage (taken to one decimal place), of the related Serviced Mortgage Loan (or including the Non-Serviced Loan CombinationCombinations) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the principal balance of such Serviced the Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any the Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-out of pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a the Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), that payments or proceeds received from by the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio ratio, expressed as a whole number percentage (taken to one decimal place), of the related Serviced Mortgage Loan (or including the Non-Serviced Loan CombinationCombinations) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the principal balance of such Serviced the Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any the Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-out of pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), that payments or proceeds received from by the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio ratio, expressed as a whole number percentage (taken to one decimal place), of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the principal balance of such Serviced the Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.[Reserved]
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan CombinationLoan, or the sale of a Mortgage Loan or Serviced Loan CombinationLoan, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate)balance, and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.mortgage
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C20)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a any Serviced Loan Combination, of amounts payable to any related Serviced Pari Passu Companion Loan Holder or in respect of the Trust Subordinate Companion Loan, as applicable, pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), ) hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder or in respect of the Trust Subordinate Companion Loan pursuant to the related Intercreditor AgreementAgreement as set forth in Section 1.03(g) hereof), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), ) hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any the related Serviced Pari Passu Companion Loan Holder or in respect of the Trust Subordinate Companion Loan pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or the Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.of
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C25), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C24)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of any Serviced Whole Loan in the form of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among the Mortgage Loan and Companion Loan(s) constituting such Serviced Whole Loan in accordance with the express provisions of the related Intercreditor Agreement and, in the absence of such express provisions, in accordance with this Agreement. All amounts collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid Liquidation Expenses and any outstanding Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding Excess Interest, without duplication, any Unliquidated Advances in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Loan to but not including the date of receipt by or on behalf of the Trust, in that order. If any Non-Serviced Mortgage Loan becomes an "REO Loan.
(c) The parties hereto acknowledge that any payments" as defined under the related Non-Serviced Loan Servicing Agreement, collections and recoveries received by as applicable, the parties treatment of the foregoing amounts with respect to such Mortgage Loan shall be subject to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage LoanLoan Servicing Agreement.
(dc) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Principal Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or related REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Certificate Administrator Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, Trustee or the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan and such Companion Loan Holder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-5), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2008-Ls1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretionprovisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhninth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Loan at the related Mortgage Loan to, Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02its good faith judgment.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) [All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. .] All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of “Principal Distribution Amount”, and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances excluding Excess Interest in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of “Principal Distribution Amount”; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an a REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an a REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an a REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Principal Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(fg) All net present value calculations and determinations made For purposes of calculating LIBOR with respect to a Mortgage Loan (other than a Nonthe Class A-Trust-Serviced Pooled Mortgage Loan)FL Certificates and each Interest Accrual Period, a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) LIBOR shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combinationrounded, or if necessary, to the sale nearest hundred-thousandth of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Propertypercentage point.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.), Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;; and
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc18), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C25)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Cross- Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(ii ) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C16), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C16)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) ; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) ; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) ; sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) ; tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) ; and, eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), that payments or proceeds received from by the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio ratio, expressed as a whole number percentage (taken to one decimal place), of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the principal balance of such Serviced the Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) ; third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) ; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) ; and seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan[Reserved.]
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(fe) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan CombinationLoan, or the sale of a Mortgage Loan or Serviced Loan CombinationLoan, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate)balance, and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation accrued and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhunpaid Excess Interest; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Hyper-Amortization Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges, but excluding, in the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, accrued and unpaid Excess Interest) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage a Hyper- Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions and allocations of Realized Losses and Additional Trust Fund Expenses pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage a Hyper- Amortization Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Hyper-Amortization Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) in the form of payments from Mortgagors, which Liquidation Proceeds or Insurance Proceeds shall be allocated applied in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents andloan documents, and in the absence of such express provisions or if and provisions, to the extent that such terms authorize not inconsistent with the lender related loan documents for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to use its discretionArticle IV and additional compensation payable to the Master Servicer, shall be applied:
(ithe Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) interest thereon and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) , eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, as a recovery of Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Thru Certs Series 2001-3), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan, which shall be allocated ) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Liquidation Proceeds or Liquidation Insurance Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Scheduled P&I Payment from any Borrower, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD accrued and unpaid Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property how all such payments and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be proceeds are actually applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the applied for purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Cross-Collateralized Group (which shall not include the [Separately Serviced Mortgage Loan] Loan Group), including any in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisionsprovisions or if such documents authorize the lender to use its discretion, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Serviced Mortgage Loan (but excluding any Nonsuch allocation to be made pursuant to the prior sentence if such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereofCollateralized Group), including any in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related such Mortgage Note and Mortgage Loan (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms documents authorize the lender to use its discretion, shall be applied:
(i) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of the mortgage loan interest accrual period ending receipt (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees, assumption application fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided thatLoan to, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination)but not including, payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received by the Trust with Collections in respect to each of any Administered REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers and also for reporting purposes) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, (exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth; fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loanto, but not including, the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries Amounts received by the parties Master Servicer on behalf of the Trust as remittances under a [Separately Serviced Mortgage Loan] Servicing Agreement with respect to the Non-Trust Pooling [Separately Serviced Mortgage Loan] or the [Separately Serviced Mortgage Loan] REO Loan shall be allocated, subject to the [Separately Serviced Mortgage Loan] Intercreditor Agreements, among interest (other than Additional Interest), principal, Prepayment Premiums, Additional Interest and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance due thereon consistent with the terms and conditions Section ______ of the related Intercreditor Agreement and the related Non-Trust-[Other CMBS Series PSA] or any comparable section of any other [Separately Serviced Pooled Mortgage Loan] Servicing Agreement.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) Insofar as amounts received in respect of any Serviced Mortgage Loan or Administered REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements in accordance with Section 3.11.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer Servicer, in its reasonable judgment, and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement to Certificateholders as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Serviced Mortgage Loan Group and a Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances, together with, if a Liquidation Event has occurred on such Pooled Mortgage Loan, any interest on such Nonrecoverable Servicing Advance (or Unliquidated Advance) that was paid out of general collections or advances of principal on the Mortgage Pool) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of any related P&I Advances theretofore determined to constitute Nonrecoverable Advances, any related unpaid Master Servicing Fees and any related Unliquidated Advances in respect of prior P&I Advances, together with, if a Liquidation Event has occurred on such REO Property, any interest on any such Nonrecoverable P&I Advance or Unliquidated Advance that was paid out of general collections or advances of principal on the Mortgage Pool; third, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) thirdfourth, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) ; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) ; sixth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; seventh, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) ; tenth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) Interest; eleventh, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) , twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans (other than REO Mortgage Loans) in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) other than an REO Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds Repurchase Proceeds or Liquidation Proceeds (including any such collections on or in respect payments of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan Substitution Shortfall Amounts shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions of, or if and to the extent that not covered by, such terms authorize the lender to use its discretionexpress provisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder or exercise of a Call Option (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, at the related Mortgage Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer in its reasonable and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02good faith judgment.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any the Lion Industrial Portfolio Pooled Mortgage Loans and the Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereofLoans), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, ; sixth as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, including the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr3)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans (other than REO Mortgage Loans) in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) other than an REO Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Condemnation Proceeds, Insurance Proceeds, Condemnation Liquidation Proceeds, Repurchase Proceeds or Liquidation Proceeds (including any such collections on or in respect payments of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan Substitution Shortfall Amounts shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions of, or if and to the extent that not covered by, such terms authorize the lender to use its discretionexpress provisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth. Notwithstanding the foregoing, in the case of an ARD Mortgage Loan after its any interest collected on a Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Date Loan that constitutes Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must shall be applied to reduce the grantor trust only after the payment of all principal balance of and interest then due and owing on such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsLoan.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, at the related Mortgage Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02Servicer.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Heller Financial Commercial Mort Asset Corp Series 1999 Ph 2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any the Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Serviced Mortgage Loan Group and a Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided thatLoan to, in connection with any Serviced Mortgage Loan (but not including, the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on Trust. To the value of the real property and excluding personal property and going concern value, if any, unless otherwise extent permitted under the applicable REMIC rules related Mortgage Loan Documents, the aggregate of any amounts received on or in respect of either or both of the promissory notes that together evidence the Pooled Mortgage Loan secured by the Mortgaged Property identified on the Pooled Mortgage Loan Schedule as evidenced by an opinion of counsel provided to the Trustee) must "Marcus Avenue" shall be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by set forth above and such application under each clause shall be made pro rata according to the REMIC Provisionsrespective amounts described for each such promissory note.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to any Serviced Mortgage Loan Group or a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(gLoan) hereof), (exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Pooled Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vi) sixth; fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vii) seventh; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Pooled Mortgage Loan (other than, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Pooled Mortgage LoanLoan to, but not including, the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any each Serviced Mortgage Loan Combination Group or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Mortgage Loan Group Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders Non-Pooled Noteholders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, Provisions or (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr10)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding, without duplicationin the case of an ARD Loan after its Anticipated Repayment Date, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I AdvancesExcess Interest) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of on such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on REO Loan at the related REO Mortgage Loan to, Rate in effect from time to time to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a For the one Mortgage Loan (other than that has a Non-Trust-Serviced Pooled Mortgage Loan)Due Date on the 10th of each month, a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicerhas agreed to advance the Monthly Payment each month on the related Master Servicer Remittance Date; therefore, as applicableeach Monthly Payment under such Mortgage Loan, that approximates to the market rate that would be obtainable extent paid by the related Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne advanced by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator Trustee or the Tax AdministratorFiscal Agent, as applicable, (i) relates primarily will be deemed to be received within the general administration of Collection Period that ends in the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or month in which the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC taxrelated Due Date occurs.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Comm Mort Inc Pass Throu Certs Series 2004 2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans (other than REO Mortgage Loans) in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) other than an REO Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Condemnation Proceeds, Insurance Proceeds, Condemnation Liquidation Proceeds, Repurchase Proceeds or Liquidation Proceeds (including any such collections on or in respect payments of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan Substitution Shortfall Amounts shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions of, or if and to the extent that not covered by, such terms authorize the lender to use its discretionexpress provisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth. Notwithstanding the foregoing, in the case of an ARD Mortgage Loan after its any interest collected on a Anticipated Repayment Date, as a recovery Date Loan that constitutes Excess Interest shall be applied after the payment of accrued the principal then due and unpaid Post-ARD Additional Interest owing on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, at the related Mortgage Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02Servicer.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Depositor for Series 1999-Fnv1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-out of pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C17)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Servicer among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretionprovisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan at the related Mortgage Rate to, but not including, the end date of the mortgage loan interest accrual period ending receipt (or, in the Collection Period in which case of a full Monthly Payment from any Mortgagor, through the collection occurredrelated Due Date), exclusive, however, in the case of an ARD Loan after its Anticipated Repayment Date, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan at the related Mortgage Rate to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trustreceipt, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, of any such accrued and unpaid interest that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges Prepayment Premium or Yield Maintenance Premium deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanInterest.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Servicing Compensation payable to the Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer Determination Date Report and in the appropriate monthly Distribution Date Statement as provided in Section 4.02Trustee Report.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) in the form of payments from Mortgagors, which Liquidation Proceeds or Insurance Proceeds shall be allocated applied in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents andloan documents, and in the absence of such express provisions or if and provisions, to the extent that such terms authorize not inconsistent with the lender related loan documents for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to use its discretionArticle IV and additional compensation payable to the Master Servicer, shall be applied:
(ithe Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) interest thereon and, if applicable, unpaid Liquidation Expenses and any compensation payable to the Master Servicer, Special Servicer or the Trustee resulting therefrom and any outstanding Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) , eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances, interest on Advances and other compensation payable to the Master Servicer, Special Servicer or the Trustee therefrom and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation outstanding Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, as a recovery of Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mort Pass Through Cert Ser 2002-2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding, without duplicationin the case of an ARD Loan after its Anticipated Repayment Date, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I AdvancesExcess Interest) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Serviced Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Serviced Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Serviced Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Serviced Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Serviced Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Serviced Loan (other than, in the case of an REO Mortgage Serviced Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Serviced Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Serviced Loan to but not including the date of receipt by or on behalf of the Trust, in that order. If the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan or Torre Mayor Pari Passu Note A-2 Mortgage Loan becomes an "REO Serviced Loan.
(c) The parties hereto acknowledge that any payments" as defined under the KinderCare Portfolio Pooling Agreement or the Torre Mayor Pooling Agreement, collections and recoveries received by as applicable, the parties treatment of the foregoing amounts with respect to such Mortgage Loan shall be subject to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interestPooling Agreement.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc. Series 2006-1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding, without duplicationin the case of an ARD Loan after its Anticipated Repayment Date, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I AdvancesExcess Interest) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.receipt..
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of on such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on REO Loan at the related REO Mortgage Loan to, Rate in effect from time to time to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan Noteholder and such Companion Loan Noteholder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mort. Pass Thr. Certs SER 2004-3)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permitpermit or require. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or the applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.mortgage
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C19)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) interest thereon and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orprincipal; and, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) interest thereon and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium or deemed to be due and are then existing with owing in respect to such Mortgage of the related REO Loan;
(v) ; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan (other thanor REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, in as the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Datemay be, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and (y) Trust Advisor Consulting Fees charges, such amounts shall be allocated between such of those fees and charges as are due and owingpayable to the Master Servicer, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensationon the one hand, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case such of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, those fees and charges as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties are payable to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interestSpecial Servicer, principal or other amounts on the other, pro rata in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loantheir respective entitlements.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan Noteholder and such Companion Loan Noteholder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certificates Series 2003-1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances excluding Excess Interest in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Serviced Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Serviced Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Serviced Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Serviced Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Serviced Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Serviced Loan (other than, in the case of an REO Mortgage Serviced Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Serviced Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanServiced Loan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or related REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Serviced Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against the One Stamford Forum Note B Holder and the One Stamford Forum Note B Holder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-3)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized GroupGroup (which shall not include the Great Lakes Crossing Total Loan), including any in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(cCollateralized Group), hereof), including any in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
(ii) , Additional Trust Fund Expenses and other fees and expenses payable to any Master Servicer, any Special Servicer or the Trustee and attributable to such Mortgage Loan; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees, assumption application fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
(ii) , Additional Trust Fund Expenses or other fees and expenses payable to any Master Servicer, any Special Servicer or the Trustee and attributable to such REO Property or the related REO Mortgage Loan; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth; fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received Loan to but not including the date of receipt by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions on behalf of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mor Sec Corp Com Cer Ser 2003-C3)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO PropertyProperty and exclusive of, in the case of any REO Property relating to a Serviced Loan Combination, amounts attributable to the related Serviced Pari Passu Companion Loan and payable to the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permitpermit or require. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or the Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of any Serviced Whole Loan in the form of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among the Mortgage Loan and Companion Loan(s) constituting such Serviced Whole Loan in accordance with the express provisions of the related Intercreditor Agreement and, in the absence of such express provisions, in accordance with this Agreement. All amounts collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation principal; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of on such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on REO Loan at the related REO Mortgage Loan to, Rate in effect from time to time to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due ; and owing in respect of the related REO Mortgage Loan;
(vii) seventhfifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Loan, in that order. If either the ChampionsGate Hotel Pari Passu Mortgage Loan (other than, in or the case of an REO One Park Avenue Pari Passu Mortgage Loan that relates becomes an "REO Loan" as defined under the related Non-Serviced Loan Pooling Agreement, as applicable, the treatment of the foregoing amounts with respect to an ARD such Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties shall be subject to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO PropertyPooling Agreement.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any the Shell Plaza Pooled Mortgage Loan and the Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing AdvancesAdvances to the extent not previously reimbursed from amounts otherwise distributable as principal) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I AdvancesAdvances to the extent not previously reimbursed from amounts otherwise distributable as principal) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, ; sixth as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, including the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr4)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of Amercia Com Mort Pas Thru Cer Series 2000-2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation principal; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth. The Master Servicer shall, in to the case of an ARD fullest extent permitted by applicable law and the related Mortgage Loan after its Anticipated Repayment Datedocuments, as a recovery apply all payments on and proceeds of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced each Mortgage Loan (or Serviced Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property how all such payments and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be proceeds are actually applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the applied for purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C27)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by the Trust in respect or on behalf of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances excluding Excess Interest in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an a REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an a REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an a REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) interest thereon and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Interest then due and owing under such Mortgage Loan, eighth, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) ; tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) principal; eleventh, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) , twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, first a recovery of Default Charges Interest and then a recovery of Default Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificate Series 2000-1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated Collateralized Group) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the applicable Master Servicer and/or Additional Special Servicing Compensation payable to the applicable Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the applicable Master Servicer, on the one hand, and such of those fees and charges as are payable to the applicable Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations In the case of each Mortgaged Property that is a residential cooperative property, the respective files and determinations made with respect to a Mortgage Loan reports comprising the CMSA Investor Reporting Package (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, the CMSA Servicer Watch List) shall present the Projected Net Cash Flow for such Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including and the Projected Debt Service Coverage Ratio for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any outCo-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated op Mortgage Loan, as such terms apply to residential cooperative properties, if and to the extent that such file or (v) consists report requires preparation and/or submission of the actual payment of any REMIC taxdata concerning net cash flow or debt service coverage.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding Excess Interest, without duplication, any Unliquidated Advances in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred other amounts due and are then existing with owing in respect to of such Mortgage REO Loan;
(v) ; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related such REO Mortgage Loan;
(vi) ; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (Excess Interest) and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighthseventh, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or related REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan Holder and such Companion Loan Holder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-6)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation principal; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfthprovided that, notwithstanding the foregoing, in the case of an ARD the Health Care Loan identified on the Mortgage Loan after its Anticipated Repayment DateSchedule identified by loan number N129 (Xxxxx Nursing & Convalescent Ctr.), for so long as it is not a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Specially Serviced Mortgage Loan; provided that, all amounts collected in connection respect thereof shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) in accordance with any Serviced the express provisions of - 45 - the related Mortgage Note and Mortgage. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Loan at the related Mortgage Loan to, Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; and, fifth, as a recovery of any Default Charges other amounts (including, without limitation, Penalty Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that any payments, collections and recoveries received by the parties constitute additional servicing compensation payable to the Non-Trust Pooling Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to charges, such amounts shall be allocated by between such parties of those fees and charges as interestare payable to the Master Servicer, principal or other amounts on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the terms and conditions of sole amount that will be paid to the related Intercreditor Agreement Master Servicer and the related Non-Trust-Serviced Pooled Mortgage LoanSpecial Servicer with respect thereto.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a the Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the applicable Master Servicer or applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any the Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders Holder any out-of-out of pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.. Section 1.03
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C16)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Cross- Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO PropertyProperty and exclusive of, in the case of any REO Property relating to a Serviced Loan Combination, amounts attributable to the related Serviced Pari Passu Companion Loan and payable to the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permitpermit or require. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than the Trust’s interest in any Mortgaged REO Property or REO Property, or any interest therein, related acquired with respect to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or the Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax. Section 1.03 and Section 3.05(a) of this Agreement shall be construed in accordance with the preceding statement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Serviced Mortgage Loan Group and a Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest or, in the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, that constitutes 0000-0000 Xxxxxx Xxxxxx Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute and, in the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, other than 0000-0000 Xxxxxx Xxxxxx Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment DateDate or in the case of the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided thatLoan or as a recovery of accrued and unpaid 0000-0000 Xxxxxx Xxxxxx Additional Interest, in connection with any Serviced Mortgage Loan (as the case may be, to, but not including, the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to any Serviced Mortgage Loan Group or a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereofLoan), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest or, in the case of an REO Pooled Mortgage Loan that relates to the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, that constitutes 0000-0000 Xxxxxx Xxxxxx Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Pooled Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vi) sixth; fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vii) seventh; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Pooled Mortgage Loan (other than, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighthother than, in the case of an REO Pooled Mortgage Loan that relates to the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, accrued and unpaid 0000-0000 Xxxxxx Xxxxxx Additional Interest); and seventh, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment DateDate or in the case of an REO Pooled Mortgage Loan that relates to the 0000-0000 Xxxxxx Xxxxxx Pooled Mortgage Loan, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Pooled Mortgage LoanLoan or as a recovery of any accrued and unpaid 0000-0000 Xxxxxx Xxxxxx Additional Interest, as the case may be, to, but not including, the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any each Serviced Mortgage Loan Combination Group or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Mortgage Loan Group Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Non-Pooled Mortgage Loan Holders Noteholders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, Provisions or (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereofCollateralized Group), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first: FIRST, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second; SECOND, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) thirdTHIRD, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth; FOURTH, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; FIFTH, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; SIXTH, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; SEVENTH, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; EIGHTH, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; NINTH, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; TENTH, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, ELEVENTH, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) first: FIRST, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second; SECOND, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) thirdTHIRD, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth; FOURTH, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth; FIFTH, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; SIXTH, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand SEVENTH, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the applicable Master Servicer and/or Additional Special Servicing Compensation payable to the applicable Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the applicable Master Servicer, on the one hand, and such of those fees and charges as are payable to the applicable Special Servicer, on the other, PRO RATA in accordance with their respective entitlements in accordance with SECTION 3.11 hereof.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section SECTION 4.02.
(f) All net present value calculations In the case of each Mortgaged Property that is a residential cooperative property, the respective files and determinations made with respect to a Mortgage Loan reports comprising the CMSA Investor Reporting Package (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, the CMSA Servicer Watch List) shall present the Projected Net Cash Flow for such Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including and the Projected Debt Service Coverage Ratio for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any outCo-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated op Mortgage Loan, as such terms apply to residential cooperative properties, if and to the extent that such file or (v) consists report requires preparation and/or submission of the actual payment of any REMIC taxdata concerning net cash flow or debt service coverage.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by the Trust in respect or on behalf of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances excluding Excess Interest in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding, without duplicationin the case of an ARD Loan after its Anticipated Repayment Date, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I AdvancesExcess Interest) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Loan to but not including the date of receipt by or on behalf of the Trust, in that order. If the Fashion Show Mall Mortgage Loan becomes an "REO Loan" under the Fashion Show Mall Pooling Agreement, the treatment of the foregoing amounts with respect to the Fashion Show Mall Mortgage Loan shall be subject to the terms of the Fashion Show Mall Intercreditor Agreement and the Fashion Show Mall Pooling Agreement.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or related REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related Loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates; provided, however, that any such interest collected in connection with the involuntary prepayment of the CP Component Mortgage Loan shall be used to offset any shortfalls of interest for the related Distribution Date allocable to the CP Component Mortgage Loan prior to such shortfalls of interest being allocated to the Class CP Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan Noteholder and such Companion Loan Noteholder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Serviced Mortgage Loan Group and a Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided thatLoan to, in connection with any Serviced Mortgage Loan (but not including, the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to any Serviced Mortgage Loan Group or a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereofLoan), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Pooled Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vi) sixth; fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vii) seventh; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Pooled Mortgage Loan (other than, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Pooled Mortgage LoanLoan to, but not including, the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any each Serviced Mortgage Loan Combination Group or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Mortgage Loan Group Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Non-Pooled Mortgage Loan Holders Noteholders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.Certificate
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr16)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of any Whole Loan in the form of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among the Mortgage Loan and Companion Loan(s) constituting such Whole Loan in accordance with the express provisions of the related Intercreditor Agreement and, in the absence of such express provisions, in accordance with this Agreement. All amounts collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding Excess Interest, without duplication, any Unliquidated Advances in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Loan to but not including the date of receipt by or on behalf of the Trust, in that order. If either the Beacon Seattle & DC Portfolio Mortgage Loan or the 575 Lexington Avenue Pari Passu Mortgage Loan becomes an "REO Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the " as xxxxxxx xxxxx xxx xxlated Non-Trust Serviced Loan Pooling and Servicing Agreement related Agreement, as applicable, the treatment of the foregoing amounts with respect to a Non-Trust-Serviced Pooled such Mortgage Loan are required shall be subject to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Pooling and Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO PropertyAgreement.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-2)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan, which shall be allocated ) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Liquidation Proceeds or Liquidation Insurance Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under additional compensation payable to the related Mortgage Note Master Servicer, the Special Servicer and Mortgage (including for principal and accrued and unpaid interestany Sub-Servicers) in accordance with the express provisions terms of the related Mortgage Loan Documents anddocuments or, in the absence of any such express provisions terms or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Scheduled P&I Payment from any Borrower, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD accrued and unpaid Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges, but excluding, in the case of an ARD Loan after its Anticipated Repayment Date, accrued and unpaid Additional Interest) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions on, as well as allocations of Realized Losses and Additional Trust Fund Expenses to, the Certificates pursuant to this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Com Mor Pas THR Cer Se 1999-C1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Cross- Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Non-Trust-Serviced the Ballston Common Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereofthe Renaissance Pooled Mortgage Loan and the 1290 Avenue of the Americas Pooled Mortgage Loan), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, including the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Sec Fin Corp Com Mort Tr 2003 Pwr1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated Collateralized Group) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, Trust exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any paymentsFor the purposes of this Agreement, collections and recoveries received receipt by the parties Crystal Pavilion/Xxxxx Building Lead Lender or its servicing agent of any amounts relating to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Crystal Pavilion/Xxxxx Building Mortgage Loan are required or the Trust's share of any amounts relating to the Crystal Pavilion/Xxxxx Building Mortgaged Property shall be deemed to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions received on behalf of the related Intercreditor Agreement Trust. The allocation of collections among the Crystal Pavilion/Xxxxx Building Mortgage Loan and the related NonCrystal Pavilion/Xxxxx Building Other Loans shall be subject to the Crystal Pavilion/Xxxxx Building Co-Trust-Serviced Pooled Mortgage LoanLender Agreement.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated Collateralized Group) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
(ii) , Additional Trust Fund Expenses and other fees and expenses payable to any Master Servicer, any Special Servicer or the Trustee and attributable to such Mortgage Loan; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
(ii) , Additional Trust Fund Expenses or other fees and expenses payable to any Master Servicer, any Special Servicer or the Trustee and attributable to such REO Property or the related REO Mortgage Loan; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, Trust exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the applicable Master Servicer and/or Additional Special Servicing Compensation payable to the applicable Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the applicable Master Servicer, on the one hand, and such of those fees and charges as are payable to the applicable Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement to Certificateholders as provided in Section 4.02.
(f) All net present value calculations In the case of each Mortgaged Property that is a residential cooperative property, the respective files and determinations made with respect to a Mortgage Loan reports comprising the CMSA Investor Reporting Package (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, the CMSA Servicer Watch List) shall present the Projected Net Cash Flow for such Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including and the Projected Debt Service Coverage Ratio for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any outCo-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated op Mortgage Loan, as such terms apply to residential cooperative properties, if and to the extent that such file or (v) consists report requires preparation and/or submission of the actual payment of any REMIC taxdata concerning net cash flow or debt service coverage.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any a Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated Collateralized Group) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
, Additional Trust Fund Expenses and other fees and expenses payable to any Master Servicer, any Special Servicer or the Trustee and attributable to such Mortgage Loan; second, as a recovery of any related Nonrecoverable Advances (iiand Advance Interest thereon) secondand Workout-Delayed Reimbursement Amounts that were paid from principal collections on the Mortgage Loans, third, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, fourth as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) ; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) ; sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ; eighth, as a recovery of any Default Charges then due and owing under such Mortgage Loan; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) ; tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) Interest; eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) , twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
, Additional Trust Fund Expenses or other fees and expenses payable to any Master Servicer, any Special Servicer or the Trustee and attributable to such REO Property or the related REO Mortgage Loan; second, as a recovery of any related Nonrecoverable Advances (iiand Advance Interest thereon) secondand Workout-Delayed Reimbursement Amounts that were paid from principal collections on the Mortgage Loan; third, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, Trust exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, fourth as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) ; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) ; sixth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan; seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) and eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement to Certificateholders as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C3)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Non-Trust-Serviced the RREEF Textron Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled acquired in respect of the RREEF Textron Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(gPair) hereof), (exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Pooled Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vi) sixth; fifth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Pooled Mortgage Loan;
(vii) seventh; sixth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand seventh, in the case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Pooled Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties Amounts collected on or with respect to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled RREEF Textron Mortgage Loan are required to Pair or any related REO Property shall be allocated by such parties as interest, principal or other amounts applied in accordance with the terms and conditions Section 3 or Section 4, as applicable, of the related Intercreditor Agreement and the related NonRREEF Textron Co-Trust-Serviced Pooled Mortgage LoanLender Agreement.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the applicable Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement Certificate Administrator Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated Collateralized Group) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
, Additional Trust Fund Expenses and other fees and expenses payable to the Master Servicer, the Special Servicer or the Trustee and attributable to such Mortgage Loan; second, as a recovery of any related Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts (iiand Advance Interest thereon) secondthat were paid from collections of principal on the Mortgage Loans, third, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending Trust (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, fourth as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) ; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) ; sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; seventh, as a recovery of any Yield Maintenance Charge then due and owing under such Mortgage Loan; eighth, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) ; tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) Interest; eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) , twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (to but not including the date of receipt by or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio on behalf of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC ProvisionsTrust.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses and, to the extent not covered by Liquidation Expenses;
, Additional Trust Fund Expenses or other fees and expenses payable to the Master Servicer, the Special Servicer or the Trustee and attributable to such REO Property or the related REO Mortgage Loan; second, as a recovery of any related Nonrecoverable Advances (iiand Advance Interest thereon) secondand Workout-Delayed Reimbursement Amounts that were paid from collections of principal on the Mortgage Loan; third, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt receipt, by or on behalf of the Trust, Trust exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, fourth as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth; fifth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Yield Maintenance Charge deemed to be due and are then existing with owing in respect to such of the related REO Mortgage Loan;
(v) fifth; sixth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) ; seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) and eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the such Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Group in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together withexcluding, without duplicationin the case of an ARD Loan after its Anticipated Repayment Date, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I AdvancesExcess Interest) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or related REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related Loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates; provided, however, that any such interest collected in connection with the involuntary prepayment of the FM Component Mortgage Loan shall be used to offset any shortfalls of interest for the related Distribution Date allocable to the FM Component Mortgage Loan prior to such shortfalls of interest being allocated to any Class of Class FM Certificates; provided, further, however, that any such interest collected in connection with the involuntary prepayment of the SM Component Mortgage Loan shall be used to offset any shortfalls of interest allocable to the SM Component Mortgage Loan for the related Distribution Date prior to such shortfalls of interest being allocated to any Class of Class SM Certificates; provided, further, however, that any such interest collected in connection with the involuntary prepayment of the LM Component Mortgage Loan shall be used to offset any shortfalls of interest allocable to the LM Component Mortgage Loan for the related Distribution Date prior to such shortfalls of interest being allocated to the Class LM Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan Noteholder and such Companion Loan Noteholder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Cross-Collateralized Group, including any Group in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated Collateralized Group) in accordance with Section 1.03(c), hereof), including any the form of payments from Borrowers, Insurance Proceeds, Condemnation Liquidation Proceeds or Liquidation Insurance Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of the mortgage loan interest accrual period ending receipt (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trustreceipt, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanInterest.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents loan documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Pooled Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan constitutes part of a Cross-Collateralized Group, but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing AdvancesAdvances to the extent not previously reimbursed from amounts otherwise distributable as principal) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Pooled Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I AdvancesAdvances to the extent not previously reimbursed from amounts otherwise distributable as principal) of such Pooled Mortgage Loan then due and owing, including by reason of acceleration of such Pooled Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; sixth, as a recovery of any Default Charges then due and owing under such Pooled Mortgage Loan;
(viii) eighth; seventh, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Pooled Mortgage Loan;
(ix) ninth; eighth, as a recovery of any assumption fees and modification fees then due and owing under such Pooled Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Pooled Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; tenth, as a recovery of any remaining principal of such Pooled Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period date of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr5)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub- Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Hyper- Amortization Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Posta Hyper-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Interest on an ARD Mortgage a Hyper-Amortization Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Hyper-Amortization Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan4.02(b), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.-50-
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.in
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received collected by or on behalf of the Trust in respect of any Cross-Collateralized Group, including any Set in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group Set in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received collected by or on behalf of the Trust in respect of any Whole Loan in the form of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among the Mortgage Loan and Companion Loan(s) constituting such Whole Loan in accordance with the express provisions of the related Intercreditor Agreement and, in the absence of such express provisions, in accordance with the Servicing Standard and the REMIC Provisions. All amounts collected by or on behalf of the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents loan documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute including interest on such Nonrecoverable Servicing Advances) and Workout-Delayed Reimbursement Amounts that were reimbursed from general collections on the Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of "Principal Distribution Amount", and, if applicable, unpaid related Liquidation Expenses and any outstanding related Additional Trust Fund Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances excluding Excess Interest in respect the case of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advancesan ARD Loan after its Anticipated Repayment Date) on such Mortgage Loan to, but not including, the end date of receipt by or on behalf of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest Trust (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, through the related Due Date, that constitutes Post-ARD Additional Interest); provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from to but not including the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received Collections by or on behalf of the Trust with in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Nonrecoverable Advances (together including interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with any Unliquidated Advances respect to such REO Loan, that were reimbursed from collections on the Mortgage Loans and resulted in respect principal distributed to the Certificateholders being reduced as a result of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) the first proviso of the definition of "Principal Distribution Amount"; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on such REO Loan at the related Mortgage Rate in effect from time to time to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, in accordance with the Servicing Standard of the Master Servicer or the Special Servicer, as applicable, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be other amounts due and owing in respect of the related such REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh; fifth, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)Excess Interest); and
(viii) eighthand sixth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt by or on behalf of the Trust, in that order.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest. Any reference to the Certificate Principal Balance of any Class of Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Certificates on such Distribution Date after giving effect to any distributions made on such Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or related REO Property and allocable to shared fees and shared charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute Additional Master Servicing Compensation payable to the Master Servicer and/or Additional Special Servicing Compensation payable to the Special Servicer, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with respect to each Mortgage Loan subject to an involuntary prepayment of principal during a Collection Period, all interest collected during such Collection Period in connection with such involuntary prepayment of principal that the related lender would be entitled to retain under the related loan documents shall be treated as excess interest and shall be used to offset any shortfalls of interest for the related Distribution Date resulting from involuntary prepayments of principal during such Collection Period prior to such shortfalls of interest being allocated to any Class of Certificates. Any such interest not required to offset shortfalls of interest for the related Distribution Date pursuant to the immediately preceding sentence shall constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement Trustee Report as provided in Section 4.02.
(fg) All net present value calculations and determinations made For purposes of calculating LIBOR with respect to a Mortgage Loan (other than a Nonthe Class A-Trust-Serviced Pooled Mortgage Loan)MFL Certificates and each Interest Accrual Period, a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) LIBOR shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combinationrounded, or if necessary, to the sale nearest hundred-thousandth of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreementpercentage point. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket If an expense incurred under this Agreement that, relates in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, Servicer or the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to Fund, any particular mortgage loans), (ii) relates primarily to a REMIC Pool formed hereunder or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, Provisions or (v) consists of the actual payment of any REMIC taxtax or expense, or this Agreement states that any expense is solely "an expense of the Trust Fund" or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Companion Loan and such Companion Loan Holder shall not suffer any adverse consequences as a result of the payment of such expense.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-1)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Borrower's Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) , eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation principal; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth. The Master Servicer shall, in to the case of an ARD fullest extent permitted by applicable law and the related Mortgage Loan after its Anticipated Repayment Datedocuments, as a recovery apply all payments on and proceeds of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced each Mortgage Loan (or Serviced Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Loan at the related Mortgage Loan to, Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; and fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that any payments, collections and recoveries received by the parties constitute additional servicing compensation payable to the Non-Trust Pooling Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to charges, such amounts shall be allocated by between such parties of those fees and charges as interestare payable to the Master Servicer, principal or other amounts on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the terms and conditions of sole amount that will be paid to the related Intercreditor Agreement Master Servicer and the related Non-Trust-Serviced Pooled Mortgage LoanSpecial Servicer with respect thereto.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Group of Cross-Collateralized Group, including any Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each of the Mortgage Loans constituting such Group. All amounts Received by the Trust collected in respect of or allocable to any particular individual Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied for purposes of this Agreement (including, without limitation, for purposes of determining distributions on the Certificates pursuant to amounts due Article IV and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and additional compensation payable to the extent that such terms authorize Master Servicer, the lender to use its discretion, shall be applied:
(iSpecial Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued ) at the related Mortgage Rate on a such Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) to but not including, as appropriate, the date of receipt or, in the case of a full Monthly Payment from any Mortgagor, the related Due Date; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhprincipal; tenth, as a an early recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, eleventh, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such ARD Mortgage Hyper-Amortization Loan; provided that, in connection with any Serviced to but not including the date of receipt. The Master Servicer shall, to the fullest extent permitted by applicable law and the related Mortgage Loan (or Serviced documents, apply all payments on and proceeds of each Mortgage Loan Combination), payments or proceeds received to amounts actually due and owing from the related Borrower Mortgagor in a manner consistent with respect to any partial release (including pursuant to a condemnation) the foregoing and shall maintain accurate records of a Mortgaged Property at a time when the loan-to-value ratio how all such payments and proceeds are actually applied and are applied for purposes of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsthis Agreement.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding, without limitation for purposes of determining distributions on the Certificates pursuant to Article IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers) as follows: first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest orexcluding, in the case of an REO Mortgage Loan that relates to an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Excess Interest) on the related REO Loan at the related Mortgage Rate to but not including the Due Date in the Collection Period of receipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred Prepayment Premium then due and are then existing with respect to owing under such Mortgage REO Loan;
(v) ; fifth, as a recovery of any other amounts (including, without limitation, Default Charges Charges) deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; and, sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Posta Hyper-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Amortization Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Excess Interest on such REO Mortgage LoanLoan to but not including the date of receipt.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of calculating distributions pursuant to this Agreement, Post-ARD Additional Excess Interest on an ARD Mortgage a Hyper-Amortization Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Hyper-Amortization Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Excess Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO Property and allocable to fees and charges owing in respect of such Mortgage Loan or the related REO Loan, as the case may be, that constitute additional servicing compensation payable to the Master Servicer and/or Special Servicer pursuant to Section 3.11, are insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to the Master Servicer, on the one hand, and such of those fees and charges as are payable to the Special Servicer, on the other, pro rata in accordance with their respective entitlements, and such payments so made shall constitute the sole amount that will be paid to the Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in reports to be delivered thereby pursuant to Section 4.024.02(b).
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any group of related Cross-Collateralized Group, including any Mortgage Loans (other than REO Mortgage Loans) in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a pro rata basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Nonwhether or not such Mortgage Loan is a Cross-Trust-Serviced Pooled Collateralized Mortgage Loan) other than an REO Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any the form of payments from BorrowersMortgagors, Condemnation Proceeds, Insurance Proceeds, Condemnation Liquidation Proceeds, Repurchase Proceeds or Liquidation Proceeds (including any such collections on or in respect payments of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan Substitution Shortfall Amounts shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions of, or if and to the extent that not covered by, such terms authorize the lender to use its discretionexpress provisions, shall be applied:
(i) applied for purposes of this Agreement: first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; fifth, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; sixth, as a recovery of any Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a recovery of any Default Penalty Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhtenth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth. Notwithstanding the foregoing, in any interest collected on a Hyper-Amortization Loan that constitutes Excess Interest shall be applied after the case payment of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued the principal then due and unpaid Post-ARD Additional Interest owing on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, at the related Mortgage Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; and fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02Servicer.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Cross-Collateralized Group, including any group of related CrossCollateralized Mortgage Loans in the form of payments from BorrowersMortgagors, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied by the Master Servicer among the such Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) loan documents and, in the absence of such express provisions, on a PRO RATA basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds whether or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including including, without limitation, for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents Note and Mortgage and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretionprovisions, shall be applied:
(i) firstapplied for purposes of this Agreement: FIRST, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second; SECOND, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) at the related Mortgage Rate on such Mortgage Loan to, to but not including, as appropriate, the end date of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest receipt or, in the case of an ARD Mortgage Loan after its Anticipated Repayment a full Monthly Payment from any Mortgagor, the related Due Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) thirdTHIRD, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including including, without limitation, by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; FOURTH, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan; FIFTH, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; SIXTH, as a recovery of any Default Charges Prepayment Premium then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; SEVENTH, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation ; and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhEIGHTH, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with Collections in respect to of each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
(i) first: FIRST, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second; SECOND, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Loan at the related Mortgage Loan to, Rate to but not including, including the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interestreceipt; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) thirdTHIRD, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred ; and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventhFOURTH, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02its good faith judgment.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust collected in respect of any Cross-Collateralized Group (which shall not include the [Separately Serviced Mortgage Loan] Loan Group), including any in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisionsprovisions or if such documents authorize the lender to use its discretion, on a PRO RATA basis in accordance with the Servicing Standardrespective amounts then "due and owing" as to each such Mortgage Loan. All amounts Received by the Trust collected in respect of or allocable to any particular Serviced Mortgage Loan (but excluding any Nonsuch allocation to be made pursuant to the prior sentence if such Mortgage Loan constitutes part of a Cross-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereofCollateralized Group), including any in the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusiveProceeds, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related such Mortgage Note and Mortgage Loan (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms documents authorize the lender to use its discretion, shall be applied:
(i) firstas follows: FIRST, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second; SECOND, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end date of the mortgage loan interest accrual period ending receipt (or, in the Collection Period in which case of a full Monthly Payment from any Borrower, through the collection occurredrelated Due Date), exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) thirdTHIRD, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth; FOURTH, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth; FIFTH, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh; SIXTH, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth; SEVENTH, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth; EIGHTH, as a recovery of any assumption fees, assumption application fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth; NINTH, as a recovery of any other amounts then due and owing under such Mortgage Loan, Loan other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventhInterest; TENTH, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, ELEVENTH, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided thatLoan to, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination)but not including, payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) date of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisionsreceipt.
(b) Amounts Received by the Trust with Collections in respect to each of any Administered REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, ) shall be treated:
applied for purposes of this Agreement (iincluding for purposes of determining distributions on the Certificates pursuant to ARTICLE IV and additional compensation payable to the Master Servicer, the Special Servicer and any Sub-Servicers and also for reporting purposes) firstas follows: FIRST, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.unpaid
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor AgreementLoans), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and any related Partition Agreement and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) ; third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) ; fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) ; sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) ; seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) ; eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ; ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) ; tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal orand, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) ; eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) , twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan; provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in Section 1.03(g) hereof)Property, exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) : first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) ; second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending Due Date in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided provided, however, that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) ; third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) ; fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are Amount then existing with respect to such Mortgage Loan;
(v) ; fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) ; sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) ; and seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Operating Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Operating Advisor Consulting Fees)); and
(viii) and eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced each Partitioned Mortgage Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Partition Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Companion Loan Junior Interest Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of any REMIC tax.the
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Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
