Common use of 05A Clause in Contracts

05A. Permitted Withdrawals From the Cherry Creek Mall Custodial Account, Annapolis Mall Custodial Account, Westfield Portfolio Custodial Account and Sangertown Square Custodial Account. The Master Servicer may, from time to time, make withdrawals from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account, as the case may be, for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals): (i) to make remittances on the applicable Loan Pair Remittance Date to the related Companion Loan Noteholder and to the Trust in accordance with SECTION 4.01 of the related Co-Lender and Servicing Agreement, such remittances to the Trust to be made into the Pool Custodial Account; (ii) to reimburse, FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, and LAST, itself, in that order, for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made by such party (with its own funds) with respect to the related Loan Pair, any such party's rights to reimbursement pursuant to this CLAUSE (ii) with respect to any P&I Advance being limited to amounts that represent late collections of interest and principal (net of the related Master Servicing Fees and any related Workout Fees or Liquidation Fees) received in respect of the particular loan in the related Loan Pair as to which such P&I Advance was made; (iii) to pay to itself earned and unpaid Master Servicing Fees with respect to the related Loan Pair, the Master Servicer's right to payment pursuant to this CLAUSE (iii) with respect to either loan in such Loan Pair being limited to amounts received on or in respect of such loan that are allocable as a recovery of interest thereon; (iv) to reimburse, FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, and LAST, itself, in that order, for any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made by such party (with its own funds) with respect to the related Loan Pair that such party has determined are Nonrecoverable Advances; (v) to pay to the Special Servicer earned and unpaid Special Servicing Fees in respect of the related Loan Pair while either loan in such Loan Pair constitutes a Specially Serviced Loan and after the related Mortgaged Property becomes an REO Property; (vi) to pay the Special Servicer (or, if applicable, a predecessor Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in respect of the related Loan Pair in the amounts and from the sources specified in SECTION 3.11(c); (vii) to reimburse itself and the Special Servicer, in that order, for any unreimbursed Servicing Advances made thereby with respect to the related Loan Pair or REO Property; (viii) to pay FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, FIFTH, itself and, LAST, the Special Servicer, in that order, any interest accrued on any Advance made thereby with respect to the related Loan Pair or REO Property, any such party's respective right to payment pursuant to this CLAUSE (viii) with respect to interest on any Advance being permitted to be satisfied (A) out of late payment charges and Default Interest collected on or in respect of the related Loan Pair during the same Collection Period in which such Advance is reimbursed, and (B) to the extent that the late payment charges and Default Interest described in the immediately preceding CLAUSE (A) are insufficient, but only after such Advance has been reimbursed, out of any other collections on or in respect of the related Loan Pair; (ix) to pay for (A) costs and expenses incurred with respect to the related Mortgaged Property pursuant to SECTION 3.09(c) (other than the costs of environmental testing, which are to be covered by, and reimbursable as, a Servicing Advance), (B) the costs and expenses of obtaining appraisals of the related Mortgaged Property pursuant to SECTION 3.11(h) or 4.03A(c) and (C) the fees of any Independent Contractor retained with respect to any related REO Property pursuant to SECTION 3.17A(c) (to the extent that it has not paid itself such fees prior to remitting collections on such REO Property to the Special Servicer); (x) to pay itself, as additional servicing compensation in accordance with SECTION 3.11(b), (A) interest and investment income earned in respect of amounts held in such Custodial Account as provided in SECTION 3.06(b), but only to the extent of the Net Investment Earnings with respect to such Custodial Account for any Collection Period and (B) Default Interest and late payment charges actually collected that accrued in respect of the related Loan Pair during a period that they were not Specially Serviced Loans and the related Mortgaged Property was not an REO Property (to the extent such Default Interest and/or late payment charges were not applied to offset interest on Advances pursuant to CLAUSE (VIII)(A) above), and to pay the Special Servicer, as additional special servicing compensation in accordance with SECTION 3.11(d), Default Interest and late payment charges actually collected that accrued in respect of the related Loan Pair during a period that they were Specially Serviced Loans or the related Mortgaged Property was an REO Property (to the extent such Default Interest and/or late payment charges were not applied to offset interest on Advances pursuant to CLAUSE (VIII)(A) above); (xi) to pay itself, the Special Servicer, or any of their respective directors, officers, employees and agents, as the case may be, any amounts payable to any such Person pursuant to SECTION 6.03, to the extent such amounts relate to the related Loan Pair; (xii) to pay for the cost of recording the related Co-Lender and Servicing Agreement and any required opinion of counsel related thereto; and (xiii) to clear and terminate such Custodial Account at the termination of this Agreement pursuant to SECTION 9.01. The Master Servicer shall keep and maintain separate accounting records in connection with any withdrawal from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account pursuant to CLAUSES (ii) - (xii) above. The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Trustee and the Fiscal Agent from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of a Servicing Officer of the Special Servicer or a Responsible Officer of the Trustee or the Fiscal Agent, as the case may be, describing the item and amount to which the Special Servicer (or such third party contractor), the Trustee or the Fiscal Agent, as the case may be, is entitled. The Master Servicer may rely conclusively on any such written statement and shall have no duty to re-calculate the amounts stated therein. The Special Servicer, the Trustee and the Fiscal Agent shall each keep and maintain separate accounting for the purpose of justifying any request for withdrawal from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account on a loan-by-loan basis. SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts, the Collection Account, the Interest Reserve Account and the REO Accounts. (a) The Master Servicer may direct in writing any depository institution maintaining a Servicing Account, a Reserve Account, the Defeasance Deposit Account or a Custodial Account and may direct in writing the Trustee with respect to the Collection Account and the Interest Reserve Account (each, for purposes of this SECTION 3.06, an "INVESTMENT ACCOUNT"), and the Special Servicer may direct in writing any depository institution maintaining an REO Account (also, for purposes of this SECTION 3.06, an "INVESTMENT ACCOUNT"), to invest, or if it is such depository institution, may itself invest, the funds held therein in one or more Permitted Investments bearing interest or sold at a discount,

05A. Permitted Withdrawals From References to a Loan Combination Custodial Account shall be references to the Cherry Creek Mall applicable Sub-Servicer Loan Combination Custodial Account, Annapolis Mall references to the Pool Custodial Account, Westfield Portfolio Account shall be references to the Sub-Servicer Custodial Account and Sangertown Square Custodial Accountreferences to the Master Servicer Remittance Date shall be references to the Sub-Servicer Remittance Date. The Sub-Servicer shall make remittances to the holders of the Cedar Ridge Townhomes Subordinate Companion Loan or the Northcrest Apartments Subordinate Companion Loan as contemplated by Section 3.05A(i). The withdrawal from the Sub-Servicer Loan Combination Custodial Accounts for the Cedar Ridge Townhomes Subordinate Companion Loan and the Northcrest Apartments Subordinate Companion Loan shall be made on or prior to the Master Servicer may, from time to time, make withdrawals from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account, as the case may be, for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals): (i) to make remittances on the applicable Loan Pair Remittance Date to in the related Companion Loan Noteholder and to the Trust month in accordance with SECTION 4.01 the applicable provisions of the related Co-Lender Agreement and Servicing Agreement, such remittances the remittance contemplated by Section 3.05A(i) to the Trust with regard to the Loan Combination Trust Mortgage Loans shall be made into the Pool Custodial Account; (ii) to reimburse, FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent on or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, and LAST, itself, in that order, for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made by such party (with its own funds) with respect prior to the related Loan Pair, any such partySub-Servicer's rights to reimbursement pursuant to this CLAUSE (ii) with respect to any P&I Advance being limited to amounts that represent late collections of interest and principal (net remittance of the related Sub-Servicer Remittance Amount to the Master Servicing Fees and any related Workout Fees or Liquidation Fees) received in respect of Servicer on the particular loan Sub-Servicer Remittance Date in the related Loan Pair as month. References to which such P&I Advance was made; (iii) to pay to itself earned and unpaid the Master Servicing Fees with respect Fee shall be references to the related Sub-Servicing Fee. All amounts that may be withdrawn from a Sub-Servicer Loan Pair, Combination Custodial Account for the Cedar Ridge Townhomes Subordinate Companion Loan or the Northcrest Apartments Subordinate Companion Loan for payment or reimbursement to the Master Servicer's right to payment pursuant to this CLAUSE (iii) with respect to either loan in such Loan Pair being limited to amounts received on or in respect of such loan that are allocable as a recovery of interest thereon; (iv) to reimburse, FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, and LAST, itself, in that order, for any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made by such party (with its own funds) with respect to the related Loan Pair that such party has determined are Nonrecoverable Advances; (v) to pay to the Special Servicer earned and unpaid Special Servicing Fees in respect of the related Loan Pair while either loan in such Loan Pair constitutes a Specially Serviced Loan and after the related Mortgaged Property becomes an REO Property; (vi) to pay the Special Servicer (or, if applicable, a predecessor Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in respect of the related Loan Pair in the amounts and from the sources specified in SECTION 3.11(c); (vii) to reimburse itself and the Special Servicer, in that order, for any unreimbursed Servicing Advances made thereby with respect to the related Loan Pair or REO Property; (viii) to pay FIRST, the Fiscal Agent, SECOND, the Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or the Sangertown Square Trustee, as applicable, FIFTH, itself and, LAST, the Special Servicer, in that order, any interest accrued on any Advance made thereby with respect to the related Loan Pair Trustee or REO Property, any such party's respective right to payment pursuant to this CLAUSE (viii) with respect to interest on any Advance being permitted to be satisfied (A) out of late payment charges and Default Interest collected on or in respect of the related Loan Pair during the same Collection Period in which such Advance is reimbursed, and (B) to the extent that the late payment charges and Default Interest described in the immediately preceding CLAUSE (A) are insufficient, but only after such Advance has been reimbursed, out of any other collections on or in respect of the related Loan Pair; (ix) to pay for (A) costs and expenses incurred with respect to the related Mortgaged Property pursuant to SECTION 3.09(c) Person (other than the costs Sub-Servicer or the holder of environmental testingthe Cedar Ridge Townhomes Subordinate Companion Loan or the Northcrest Apartments Subordinate Companion Loan) shall be remitted to the Master Servicer for payment or application by the Master Servicer. (10) Section 3.06 of the Pooling and Servicing Agreement is not incorporated herein. The Sub-Servicer may invest funds in the Sub-Servicer Custodial Account, which are to be covered byany Sub-Servicer Loan Combination Account and any Servicing Account on the same terms as the Master Servicer may invest funds in the Pool Custodial Account, Loan Combination Account and any Servicing Account, and reimbursable assubject to the same restrictions and obligations regarding maturity dates, gains, losses, possession of Permitted Investments and Permitted Investments payable on demand. Without limiting the generality of the foregoing, (A) any investment of funds in the Sub-Servicer Custodial Account or a Servicing AdvanceAccount shall be made in the name of the Trustee (in its capacity as such), ; (B) the costs and expenses of obtaining appraisals Sub-Servicer, on behalf of the related Mortgaged Property pursuant to SECTION 3.11(h) or 4.03A(c) and Trustee for the benefit of the Certificateholders, shall be the "entitlement holder", as such term is defined in the UCC, of any Permitted Investment that is a "security entitlement", as such term is defined in the UCC; (C) the fees of any Independent Contractor retained with respect to any related REO Property pursuant to SECTION 3.17A(c) (to the extent that it has not paid itself such fees prior to remitting collections on such REO Property to the Special Servicer); (x) to pay itself, as additional servicing compensation in accordance with SECTION 3.11(b), (A) interest and investment income earned in respect of amounts held in such Custodial Account as provided in SECTION 3.06(b), but only to the extent of the Net Investment Earnings with respect to such Custodial Account for any Collection Period and (B) Default Interest and late payment charges actually collected that accrued in respect of the related Loan Pair during a period that they were not Specially Serviced Loans and the related Mortgaged Property was not an REO Property (to the extent such Default Interest and/or late payment charges were not applied to offset interest on Advances pursuant to CLAUSE (VIII)(A) above), and to pay the Special Sub-Servicer, as additional special servicing compensation in accordance with SECTION 3.11(d), Default Interest and late payment charges actually collected that accrued in respect of the related Loan Pair during a period that they were Specially Serviced Loans or the related Mortgaged Property was an REO Property (to the extent such Default Interest and/or late payment charges were not applied to offset interest on Advances pursuant to CLAUSE (VIII)(A) above); (xi) to pay itself, the Special Servicer, or any of their respective directors, officers, employees and agents, as the case may be, any amounts payable to any such Person pursuant to SECTION 6.03, to the extent such amounts relate to the related Loan Pair; (xii) to pay for the cost of recording the related Co-Lender and Servicing Agreement and any required opinion of counsel related thereto; and (xiii) to clear and terminate such Custodial Account at the termination of this Agreement pursuant to SECTION 9.01. The Master Servicer shall keep and maintain separate accounting records in connection with any withdrawal from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account pursuant to CLAUSES (ii) - (xii) above. The Master Servicer shall pay to each of the Special Servicer (or to third party contractors at the direction of the Special Servicer), the Trustee and the Fiscal Agent from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account amounts permitted to be paid thereto from such account promptly upon receipt of a written statement of a Servicing Officer of the Special Servicer or a Responsible Officer behalf of the Trustee for the benefit of the Certificateholders, shall maintain continuous possession of any Permitted Investment in which a secured party may perfect its security interest by possession under the UCC or any other applicable law; (D) the Fiscal AgentSub-Servicer, on behalf of the Trustee for the benefit of the Certificateholders, shall maintain "control", as such term is defined in the case UCC, of any Permitted Investment in which a secured party may beperfect its security interest by "control" under the UCC and in which Sub-Servicer is not required to maintain continuous possession pursuant to clause (C) above; (E) possession of any Permitted Investment by the Sub-Servicer shall constitute possession by a Person designated by, describing the item and amount to which the Special Servicer (or such third party contractor)acting on behalf of, the Trustee or the Fiscal AgentTrustee, as the case may be, is entitled. The Master Servicer may rely conclusively on any such written statement and shall have no duty to re-calculate the amounts stated therein. The Special Servicer, the Trustee and the Fiscal Agent shall each keep and maintain separate accounting for the purpose of justifying any request for withdrawal from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or the Sangertown Square Custodial Account on a loan-by-loan basis. SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts, the Collection Account, the Interest Reserve Account and the REO Accounts. (a) The Master Servicer may direct in writing any depository institution maintaining a Servicing Account, a Reserve Account, the Defeasance Deposit Account or a Custodial Account and may direct in writing the Trustee with respect to the Collection Account and the Interest Reserve Account (each, secured party for purposes of this SECTION 3.06, an the UCC; and (F) "INVESTMENT ACCOUNTcontrol" of any Permitted Investment by the Sub-Servicer shall constitute ")control" by a Person designated by, and acting on behalf of, the Special Servicer may direct in writing any depository institution maintaining an REO Account (alsoTrustee, as secured party for purposes of this SECTION 3.06, an "INVESTMENT ACCOUNT"), to invest, or if it is such depository institution, may itself invest, the funds held therein in one or more Permitted Investments bearing interest or sold at a discount,UCC.