P&I Advances. (a) On or before 2:00 p.m., New York City time, on each Master Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligations, and second, by remitting its own funds to the Trustee for deposit in a Distribution Account in an amount equal to the remaining portion of such required P&I Advances. Any amounts held in the Pool Custodial Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the Pool Custodial Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such Master Servicer Remittance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 11:00 a.m., New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder. (b) The aggregate amount of P&I Advances to be made by the Master Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of any Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan), in each case net of related Master Servicing Fees and any related Workout Fees, due or deemed due, as the case may be, in respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during the related Collection Period, in each case to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the related Determination Date; provided that if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues to exist, shall be reduced to equal the product of (x) the amount of the subject P&I Advance that would otherwise be required without regard to this proviso, multiplied by (y) a fraction, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction Amount, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 if such P&I Advance would, if made, constitute a Nonrecoverable Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession), engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances. (d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.
Appears in 1 contract
P&I Advances. (a) On or before 2:00 1:30 p.m., New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, subject to Section 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to end of the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then otherwise held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligationsits obligation to make P&I Advances or (ii) subject to Section 4.03(c) below, and second, by remitting remit from its own funds to the Trustee Certificate Administrator for deposit in a into the Distribution Account in an amount equal to the remaining portion aggregate amount of such required P&I Advances, if any, to be made by the subject Master Servicer in respect of the related Distribution Date. Each Master Servicer may also make P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made by the subject Master Servicer. Any amounts held in the Pool Custodial a Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the Pool Custodial such Collection Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no(▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, (215▇▇▇) 328▇▇▇-3478 ▇▇▇▇, in the case of Master Servicer No. 2, and (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 3 (or such alternative number provided by the any Master Servicer to the Trustee in writing) and by telephone at telephone no(▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, (215▇▇▇) 328▇▇▇-1258 ▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 2, and (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 3 (or such alternative number provided by any Master Servicer to the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee (or the a Fiscal Agent on its behalf) shall shall, no later than 11:00 a.m., New York City time, on such related Distribution Date make the portion of such P&I Advances that was required to be, but was not, made by the defaulting Master Servicer on such Master Servicer Remittance P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the any Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master ServicerServicer (or, if necessary, by the Trustee or the any Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of for any Distribution Date shall, subject to Section 4.03(c) below, be equal to the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Periodic Payments, in each case net of related Master Servicing Fees and (and, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related Workout Feesfees similar to Master Servicing Fees payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Outside Servicing Agreements), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto) thereto on their respective Due Dates during the related Collection PeriodPeriod (or, in each the case of a Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which the subject Distribution Date occurs) to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination Collection Period (or, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, actually received by the Certificate Administrator or Master Servicer No. 1 as of 1:00 p.m., New York City time, on the related P&I Advance Date); provided that that, (i) if the Periodic Payment on any Trust Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), or if the final maturity on any Trust Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Trust Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to existadvance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, shall be reduced as the case may be, only an amount equal to equal the product sum of (xA) the amount of the subject interest portion of the P&I Advance that would otherwise be required without regard to this provisoclause (ii), multiplied by minus 1/12th of the product of (y1) such Appraisal Reduction Amount (or, in the case of a fractionTrust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto that is part of a Loan Combination, solely the numerator portion of which any Appraisal Reduction Amount with respect to such Loan Combination that is equal allocable to the Stated Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, net in accordance with, or as contemplated by, the definition of "Appraisal Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for such Distribution Date applicable to the respective Classes of Principal Balance Certificates and Group FL REMIC II Regular Interests to which such Appraisal Reduction Amount (or the applicable portion thereof) is allocated pursuant to Section 4.04(d), weighted -251- on the basis of the respective portions of such Appraisal Reduction AmountAmount allocable to such Classes of Principal Balance Certificates and such Group FL REMIC II Regular Interests, and (B) the amount of the principal portion of the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1 (with respect to the Ala Moana Portfolio Trust Mortgage Loan and any successor REO Trust Mortgage Loans), Master Servicer No. 2 (with respect to the AmeriCold Trust Mortgage Loan and any successor REO Trust Mortgage Loans), and the denominator of which is equal Trustee and any Fiscal Agent, as applicable, with respect to the Stated Principal Balance of Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto, shall each be required to make P&I Advances (and shall obtain recovery with respect thereto) in the same way that such party is required to make and recover P&I Advances with respect to any other Trust Mortgage Loan or REO Trust Mortgage Loan, Loan in the Mortgage Pool. If Master Servicer No. 1 or Master Servicer No. 2 (as the case may be), the Trustee or any Fiscal Agent makes a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify the relevant Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to such Outside Serviced Loan Combination that includes such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by, and out of amounts specified for such purpose under, the related Co-Lender Agreement and/or the relevant Outside Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by a Master Servicer that it has made (or the determination by the Special Servicer that the Master Servicer or Special Servicer that a P&I Advance has become made) a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Fiscal Agent (if any), the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent Certificate Administrator and the Depositor on or before the related Master Servicer Remittance P&I Advance Date, setting forth the basis for such determination, together with any other information that supports information, including Appraisals (the cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e)) (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property performed within the 12 months preceding such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)Properties, engineers' reports, environmental surveys and any similar reports that the subject Master Servicer or the Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the subject Master Servicer or the Special Servicer. In making a recoverability determination the applicable Person will be entitled, but not obligated, to consider (among other things) the obligations of the related Mortgagor under the terms of the related Trust Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any outstanding Nonrecoverable Advances the reimbursement of which is being deferred pursuant to Section 3.05(a), together with (to the extent accrued and unpaid) interest on such Advances. In addition, any such Person may update or change its recoverability determinations at any time, and the Master Servicers (consistent with the Servicing Standard) and the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Special Servicer's possession for such purposes. With respect to the related Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, each of Master Servicer No. 1 and Master Servicer No. 2 shall (subject to the second succeeding sentence below) make its determination that it has made a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any determination made by the servicer with respect to a commercial mortgage securitization holding the promissory note for one of the related Non-Trust Mortgage Loans. If the applicable Master Servicer determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, would be, or is, as applicable, a Nonrecoverable Advance, then the applicable Master Servicer will be required to provide the servicer of each securitization that holds the promissory note for a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, that a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto constitutes or may, if made, constitute a Nonrecoverable P&I Advance; provided, however, that if and (ii) either (A) the applicable Master Servicer has failed made a request for an appraisal with respect to make the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a P&I Advance for reasons other than a determination by response from the applicable Outside Servicer indicating that an appraisal with respect to the related Mortgaged Property would be performed within 60 days of the date of such response or has been performed within the prior 12-month period (or such shorter period as the applicable Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advancereasonably believes, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the Servicing Standard, is necessary) preceding the date of such request, and (y) within 60 days of the date of such response, a copy of an appraisal report with respect to the related Mortgaged Property, relating to an appraisal that has been performed within the 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of receipt by the applicable Master Servicer that complies with the requirements for such an appraisal under the terms of Section 3.05 the relevant Outside Servicing Agreement or this Agreement, or (B) the applicable Master Servicer has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and Section 3.05A.has been advised by the applicable Outside Servicer that such an appraisal with respect to the related Mortgaged Property will not be performed within the
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2007-C6)
P&I Advances. (a) On or before 2:00 1:00 p.m., New York City time, on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section SECTION 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring either (i) remit from its own funds to the Trustee for deposit in into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the related Distribution Date, (ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligations, and second, by remitting its own funds obligation to the Trustee for deposit in a Distribution Account in an amount equal to the remaining portion of make such required P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:30 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section SECTION 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to SECTION 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 4:30 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 11:00 a.m.6:00 p.m., New York City time, on such P&I Advance Date, then the Trustee (or any Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) Servicer in respect of any Distribution Date shallDate, subject to Section SECTION 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and any related Workout Fees, due or deemed due, as the case may be, in respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) as to which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during the related Collection Period, in each case to the extent such -199- amount was not paid by or on behalf of the related Mortgagor Borrower or otherwise collected (including as net income from REO Properties) by or on behalf of the Trust as of the close of business on the related Determination Date; provided that PROVIDED that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the any Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a P&I Advance it has become made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be made by such Person in its reasonable judgment and shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, to the applicable Special Servicer Servicer, to the Controlling Class Representative and, if made by a Master Servicer, to the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys and any or similar reports reports, that the Master Servicer or Special Servicer Person making such determination may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expensedetermination. The Trustee and the any Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of any nonrecoverability determination made by a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled with respect to make its own determination that such a particular P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Each Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior promptly furnish any party required to make P&I Advances on hereunder with any information in its possession regarding the applicable Specially Serviced Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations Loans and REO Properties as if such amounts were unreimbursed party required to make P&I AdvancesAdvances may reasonably request.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and any Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) ), for so long as such P&I Advance is outstanding; provided thatoutstanding (or, if the grace period for the delinquent Monthly Payment as to which a such P&I Advance was made under this Section has not elapsed prior to the end of any grace period applicable to the subject delinquent Monthly Payment, for so long as of the time such P&I Advance was made, then is outstanding following the total interest so accrued on such P&I Advance prior to the expiration end of such grace period). Such interest with respect to any P&I Advance shall be payable: (i) FIRST, shall not exceed in accordance with SECTIONS 3.05 and 3.26, out of any Default Charges subsequently collected on the amount of Default Charges, if any, collected in connection with the late payment of particular Mortgage Loan or REO Loan as to which such delinquent Monthly PaymentP&I Advance relates; and provided(ii) THEN, further thatafter such P&I Advance is reimbursed, but only if and to the extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account. The applicable Master Servicer shall reimburse itself, the Trustee or any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Mortgage Loan or REO Loan as soon as practicable after funds available for such purpose are deposited in such Master Servicer's Collection Account, and in no event shall interest so accrue in accordance with this SECTION 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related Master Servicer Remittance P&I Advance Date. A Master -200- Servicer shall not be entitled to Advance Interest so accrued on any particular P&I Advance made under this Section shall be payable thereby to the extent a payment is received but is being held by or on behalf of such Master Servicer in accordance with the terms of Section 3.05 and Section 3.05A.suspense.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
P&I Advances. (a) On or before 2:00 1:30 p.m., New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, subject to Section 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to end of the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then otherwise held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligationsits obligation to make P&I Advances or (ii) subject to Section 4.03(c) below, and second, by remitting remit from its own funds to the Trustee for deposit in a into the Distribution Account in an amount equal to the remaining portion aggregate amount of such required P&I Advances, if any, to be made by the subject Master Servicer in respect of the related Distribution Date. Each Master Servicer may also make P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made by the subject Master Servicer. Any amounts held in the Pool Custodial a Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the Pool Custodial such Collection Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no(▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (215▇▇▇) 328▇▇▇-3478 ▇▇▇▇, in the case of Master Servicer No. 2 (or such alternative number provided by the any Master Servicer to the Trustee in writing) and by telephone at telephone no(▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (215▇▇▇) 328▇▇▇-1258 ▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, the case of Master Servicer No. 2 (or such alternative number provided by any Master Servicer to the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee (or the a Fiscal Agent on its behalf) shall shall, no later than 11:00 a.m., New York City time, on such related Distribution Date make the portion of such P&I Advances that was required to be, but was not, made by the defaulting Master Servicer on such Master Servicer Remittance P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the any Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master ServicerServicer (or, if necessary, by the Trustee or the any Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of for any Distribution Date shall, subject to Section 4.03(c) below, be equal to the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Periodic Payments, in each case net of related Master Servicing Fees and (and, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related Workout Feesfees similar to Master Servicing Fees payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Outside Servicing Agreements), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto) thereto on their respective Due Dates during the related Collection PeriodPeriod (or, in each the case of a Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which the subject Distribution Date occurs) to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination Collection Period (or, in the case of any Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loan with respect thereto, actually received by the Trustee or the applicable Master Servicer as of 1:00 p.m., New York City time, on the related P&I Advance Date); provided that that, (i) if the Periodic Payment on any Trust Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), or if the final maturity on any Trust Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Trust Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to existadvance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, shall be reduced as the case may be, only an amount equal to equal the product sum of (xA) the amount of the subject interest portion of the P&I Advance that would otherwise be required without regard to this provisoclause (ii), multiplied by minus 1/12th of the product of (y1) such Appraisal Reduction Amount (or, in the case of a fractionTrust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto that is part of a Loan Combination, solely the numerator portion of which any Appraisal Reduction Amount with respect to such Loan Combination that is equal allocable to the Stated Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, net in accordance with, or as contemplated by, the definition of "Appraisal Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for such Distribution Date applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (or the applicable portion thereof) is allocated pursuant to Section 4.04(d), weighted on the basis of the respective portions of such Appraisal Reduction AmountAmount allocable to such Classes of Principal Balance Certificates, and (B) the amount of the principal portion of the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1 (with respect to the Seattle Needle Space Trust Mortgage Loan, the CGM RRI Hotel Portfolio Trust Mortgage Loan, the Lincoln Square Trust Mortgage Loan and any successor REO Trust Mortgage Loans with respect thereto) and Master Servicer No. 2 (with respect to the One Liberty Plaza Trust Mortgage Loan, the Scottsdale Fashion Square Trust Mortgage Loan, the ▇▇▇▇ Terminal Trust Mortgage Loan and any successor REO Trust Mortgage Loans with respect thereto), and the denominator of which is equal Trustee and any Fiscal Agent, as applicable, with respect to the Stated Principal Balance of Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto, shall each be required to make P&I Advances (and shall obtain recovery with respect thereto) in the same way that such party is required to make and recover P&I Advances with respect to any other Trust Mortgage Loan or REO Trust Mortgage Loan, Loan in the Mortgage Pool. If Master Servicer No. 1 or Master Servicer No. 2 (as the case may be), the Trustee or any Fiscal Agent makes a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify the relevant Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to such Outside Serviced Loan Combination that includes such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by, and out of amounts specified for such purpose under, the related Co-Lender Agreement and/or the relevant Outside Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by a Master Servicer that it has made (or the determination by the Special Servicer that the Master Servicer or Special Servicer that a P&I Advance has become made) a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee, the Special Servicer Fiscal Agent (in the case of a determination made by the Master Servicerif any), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent Trustee and the Depositor on or before the related Master Servicer Remittance P&I Advance Date, setting forth the basis for such determination, together with any other information that supports information, including Appraisals (the cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e)) (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property performed within the 12 months preceding such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)Properties, engineers' reports, environmental surveys and any similar reports that the subject Master Servicer or the Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the subject Master Servicer or the Special Servicer. In making a recoverability determination the applicable Person will be entitled, but not obligated, to consider (among other things) the obligations of the related Mortgagor under the terms of the related Trust Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any outstanding Nonrecoverable Advances the reimbursement of which is being deferred pursuant to Section 3.05(a), together with (to the extent accrued and unpaid) interest on such Advances. In addition, any such Person may update or change its recoverability determinations at any time, and the Master Servicers (consistent with the Servicing Standard) and the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Special Servicer's possession for such purposes. With respect to the related Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, each of Master Servicer No. 1 and Master Servicer No. 2 shall (subject to the second succeeding sentence below) make its determination that it has made a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any determination made by the servicer with respect to a commercial mortgage securitization holding the promissory note for one of the related Non-Trust Mortgage Loans. If the applicable Master Servicer determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, would be, or is, as applicable, a Nonrecoverable Advance, then the applicable Master Servicer will be required to provide the servicer of each securitization that holds the promissory note for a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, that a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto constitutes or may, if made, constitute a Nonrecoverable P&I Advance; provided, however, that if and (ii) either (A) the applicable Master Servicer has failed made a request for an appraisal with respect to make the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a P&I Advance for reasons other than response from the applicable Outside Servicer indicating that an appraisal with respect to the related Mortgaged Property would be performed within 60 days of the date of such response or has been performed within the prior 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of such request, and (y) within 60 days of the date of such response, a determination copy of an appraisal report with respect to the related Mortgaged Property, relating to an appraisal that has been performed within the 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of receipt by the applicable Master Servicer that complies with the requirements for such an appraisal under the terms of the relevant Outside Servicing Agreement or Special this Agreement, or (B) the applicable Master Servicer has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has been advised by the applicable Outside Servicer that such P&I Advance would an appraisal with respect to the related Mortgaged Property will not be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance performed within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(aclause (ii)(A) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.above
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)
P&I Advances. (a) On or before 2:00 1:00 p.m., New York City time, on each Master Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(cshall either (i) below, satisfy deposit into the Distribution Account from its obligations to make any required P&I Advances with respect own funds an amount equal to the related Distribution Date aggregate amount of P&I Advances, if any, to be made in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and second, by remitting its own funds (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the Trustee for delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in a Distribution Account in an amount equal the Collection Account, the Master Servicer shall use such Late Collections (net of any Workout Fees payable therefrom) to the remaining portion of make such required P&I Advances. Any amounts held in the Pool Custodial Collection Account for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the Pool Custodial Collection Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and and/or interest in respect of which such P&I Advances were made). If, as of 4:00 1:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215▇▇▇) 328▇▇▇-3478 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215404) 328▇▇▇-1258 ▇▇▇▇ (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 3:00 p.m., New York City time, on such Master Servicer Remittance Date. If If, after such notice by facsimilenotice, the Trustee does not receive the full amount of such P&I Advances by 11:00 a.m., the close of business (New York City time, ) on the related Distribution such Master Servicer Remittance Date, then (i) unless the Trustee (or determines that such Advance would be a Nonrecoverable P&I Advance if made, the Fiscal Agent on its behalf) Trustee shall make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance DateDate and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. If the Trustee fails is required in accordance with this Section 4.03(a) to make any such P&I Advance or portion thereof, but fails to do so by 10:00 a.m., New York City time, on the related Distribution Date, but then, unless the Fiscal Agent makes determines that such Advance would be a Nonrecoverable P&I Advance if made, the Fiscal Agent shall make such P&I Advance or other advance not later than 11:30 a.m., New York City time, on such dateDistribution Date and, then thereby, the Trustee shall be deemed not to be in default hereunderunder this Agreement.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of the Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution Date shallshall equal, subject to Section 4.03(csubsection (c) below, equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of related Master Servicing Workout Fees and any related Workout Feespayable hereunder, that (i) were due or deemed due, as the case may be, in respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereof on their respective Due Dates during the related Collection Period, calendar month in each case which such Distribution Date occurs prior to the extent such amount was Master Servicer Remittance Date therein and (ii) were not paid by or on behalf of the related Mortgagor Mortgagors or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of the related Determination DateCollection Period; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in the event of subsequent delinquencies thereon, the amount interest portion of each the P&I Advance, if any, required to be made Advance in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, as determined Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Collection Account. The determination by the Master ServicerServicer or, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer , that a P&I Advance it has become made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Trusteepromptly (and, the Special Servicer (in any event, in the case of a determination made proposed P&I Advance by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before no less than two Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Fiscal Agent (or, if applicable, retained thereby), the Sponsor and the Rating Agencies, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding if such determination in accordance with is prior to the standards liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property, as the extent available and/or in case may be, which shall have been performed within the Master Servicer's or the Special Servicer's possession)twelve months preceding such determination, engineers' reports, environmental surveys and further accompanied by any similar reports other information that the Master Servicer or the Special Servicer may have obtained consistent with and that supports such determination. Each of the Servicing Standard Trustee or Fiscal Agent, as applicable, shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer or the Special Servicer, as the case may be, may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund ExpenseTrust. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, rely on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer that with respect to a particular P&I Advance, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, Trustee and the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with out of its own funds) for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed as been received by the Master Servicer or any of its Sub-Servicers), and such interest will be paid: first, out of any Default Charges collected on or in respect of the related Mortgage Loan; and second, at any time coinciding with or following the reimbursement of such P&I Advance was madeAdvance, then out of general collections on the total interest so accrued Mortgage Loans and any REO Properties on such deposit in the Collection Account. As and to the extent provided by Section 3.05(a), the Master Servicer shall reimburse itself, the Trustee or the Fiscal Agent, as appropriate, for any P&I Advance prior to made thereby as soon as practicable after funds available for such purpose are deposited in the expiration of such grace periodCollection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was had been received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued date on any which such P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.was made.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys and any or similar reports reports, that the Master Servicer or Special Servicer Person making such determination may have obtained consistent with the Servicing Standard obtained. A copy of any such Officer's Certificate (and at the expense accompanying information) of the Trust Fund, that support such determination by Trustee or the Master Servicer or Special Servicer. If, in connection with Fiscal Agent shall also be promptly delivered to the foregoing, it is necessary for the Master Servicer to obtain an appraisalCertificate Administrator, the Master Servicer shall so notify Controlling Class Representative, the Special Servicer and consult with the Special Master Servicer regarding such appraisalfor the subject Mortgage Loan. The cost Absent bad faith, a Master Servicer's determination as to the recoverability of an appraisal any P&I Advance shall be paid by conclusive and binding on the Trust as an Additional Trust Fund Expense. The Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a rated commercial mortgage securitization similar to the securitization effected by this Agreement, if such Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.28, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, -195- the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section Date.
(e) With regard to such P&I Advances, the applicable Master Servicer, the Trustee or the Fiscal Agent shall be payable in accordance with account for that part of the terms of Section 3.05 and Section 3.05A.P&I Advances which
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr5)
P&I Advances. (a) On or before 2:00 4:00 p.m., New York City time, on each Master Servicer Remittance P&I Advance Date, the Master Servicer shall, subject to Section 4.03(cshall (i) below, satisfy its obligations to make any required P&I Advances apply amounts held in the Certificate Account received after the Determination Date with respect to the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of its obligation to make P&I Advances, or (ii) if such obligationsamounts are insufficient to discharge such obligation, and secondsubject to Section 4.03(c) below, by remitting remit from its own funds to the Trustee Paying Agent for deposit in a into the Distribution Account in an amount equal to the remaining portion aggregate amount of such required P&I Advances, if any, to be made in respect of the related Distribution Date. The Master Servicer may also make P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made. Any amounts held in the Pool Custodial Certificate Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the Pool Custodial Certificate Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the Master Servicer shall not have made any P&I Advance required to be made on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215) 328▇▇▇-3478 ▇▇▇-▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328▇▇▇-1258 ▇▇▇-▇▇▇▇ (or such alternative number provided -120- by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 4:00 p.m., New York City time, on such P&I Advance Date, then, subject to Section 4.03(c), (i) the Trustee shall, no later than 11:00 a.m., New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall Date immediately following such P&I Advance Date make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance DateP&I Advance Date and (ii) the provisions of Sections 7.01 and 7.02 shall apply. If the Trustee fails to make any P&I Advance required to be made under this Section 4.03(a), the Fiscal Agent shall, subject to Section 4.03(c), make such P&I Advance not later than 2:00 p.m., New York City time, on the related such Distribution DateDate and, but if the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunderunder this Agreement.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) Agent in respect of any Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly Scheduled Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Scheduled Payments, in each case net of related Master Servicing Fees, Special Servicing Fees and any related Workout Principal Recovery Fees, due or deemed due, as the case may be, in respect of the Mortgage Loans (including including, without limitation, Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during the related Collection Period, in each case to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including received as net income from REO Properties) as of the close of business on the related Determination Date; provided that that, (i) if the Monthly Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, or if the final maturity on any Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, and the Monthly Payment due and owing during the extension period is less than the related Assumed Scheduled Payment, then the Master Servicer shall, as to such Mortgage Loan only, advance only the amount of the Monthly Payment due and owing after taking into account such reduction (net of related Servicing Fees, Special Servicing Fees and any related Principal Recovery Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to such Required Appraisal Loan, the Master Servicer, the Trustee or the Fiscal Agent will be required in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made advance in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues only an amount equal to exist, shall be reduced to equal the product of (xi) the amount of the subject P&I Advance that would otherwise be required without regard to this provisosentence, multiplied by (yii) a fraction, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction Amount, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer that a P&I Advance it has become made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Officers' Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance P&I Advance Date, setting forth the basis for such determination, together with any other information that supports information, including Appraisals or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property performed within the twelve months preceding such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)Properties, engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect to a P&I Advance, the Trustee or the Fiscal Agent, as applicable, shall rely on the Master Servicer's determination that the P&I Advance would be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as applicable, determines that it does not have sufficient time to make such determination); provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent Agent, as applicable, shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If The Trustee and the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance Fiscal Agent, in determining whether or that not a P&I Advance previously made is is, or a proposed P&I Advance, if made, would be, a Nonrecoverable Advance, Advance shall be subject to the Special Servicer shall report its determination standards applicable to the Master Servicer and hereunder.
(d) In connection with the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability recovery by the Special Servicer to the Master Servicer, the Trustee or the Fiscal Agent of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In additionpay itself, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on Trustee or the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive out of any amounts then on deposit in the Certificate Account, interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided thatfrom the date made to but not including the date of reimbursement. The Master Servicer shall reimburse itself, if the grace period Trustee or the Fiscal Agent for the delinquent Monthly Payment as to which a any outstanding P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.3.05(a) as soon as practicable.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced 228 Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the applicable Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer's Certificate (and any similar reports that accompanying information) of the Trustee or the Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer or Special Servicer may have obtained consistent with for the Servicing Standard subject Mortgage Loan. Absent bad faith, a Master Servicer's determination as to the recoverability of any P&I Advance shall be conclusive and at binding on the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. IfCertificateholders and, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalall cases, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The applicable Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) 229 constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in 230 which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.29, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.Late
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)
P&I Advances. (a) On or before 2:00 1:30 p.m., New York City time, on each Master Servicer Remittance P&I Advance Date, the Master Servicer shall, subject to Section 4.03(cshall (i) below, satisfy its obligations to make any required P&I Advances with respect to apply amounts in the Certificate Account received after the end of the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then otherwise held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligationsits obligation to make P&I Advances or (ii) subject to Section 4.03(c) below, and second, by remitting remit from its own funds to the Trustee Paying Agent for deposit in a into the Distribution Account in Account, an amount equal to the remaining portion aggregate amount of such required P&I Advances, if any, to be made in respect of the related Distribution Date. The Master Servicer may also make P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made. Any amounts held in the Pool Custodial Certificate Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the Pool Custodial Certificate Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the Master Servicer shall not have made any P&I Advance required to be made on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215704) 328715-3478 0036 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215704) 328593-1258 7836 or (704) 593-7867 (or such alternative number provided by the Master Se▇▇ ▇▇▇ ▇▇▇▇▇▇ Serv▇▇▇▇ ▇▇ ▇▇▇ Trustee ▇▇ustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee (or the Fiscal Agent shall, no later than 11:00 a.m., New York City time, on its behalf) shall such related Distribution Date make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but and (ii) the Fiscal Agent makes such P&I Advance on such date, then the Trustee provisions of Sections 7.01 and 7.02 shall be deemed not to be in default hereunderapply.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer, Servicer or the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of any Distribution Date shall, subject to Section 4.03(c) and Section 4.03(e) below, equal the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Scheduled Payments, in each case net of related Master Servicing Fees and any related Workout Fees(and, in the case of the 2006-C23 Serviced Mortgage Loan, servicing fees due to the 2006-C23 Master Servicer to the extent not so otherwise paid pursuant to the Prime Outlets Pool Intercreditor Agreement) due or deemed due, as the case may be, in respect of the Mortgage Loans (including including, without limitation, Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during (or deemed to be during) the related Collection Period, Period (i) in each case (other than with respect to the 2006-C23 Serviced Mortgage Loan), to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination DateCollection Period or (ii) in the case of the 2006-C23 Serviced Mortgage Loan, to the extent such amount was required to be advanced by the 2006-C23 Master Servicer pursuant to the 2006-C23 Pooling and Servicing Agreement and the 2006-C23 Master Servicer failed to make such advance, the Master Servicer shall be required to make such P&I Advance only to the extent that the Master Servicer has received all information necessary to determine whether such P&I Advance is a Nonrecoverable Advance; provided that that, (x) if the Periodic Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, or if the final maturity on any Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, and the Periodic Payment due and owing during the extension period is less than the related Assumed Scheduled Payment, then the Master Servicer or the Trustee shall, as to such Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Servicing Fees) in the event of subsequent delinquencies thereon; and (y) if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Required Appraisal Mortgage Loan, then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to such Required Appraisal Mortgage Loan, the Master Servicer or the Trustee will be required in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made advance in respect of such Mortgage Loan or REO Mortgage Loan, as only an amount equal to the case may be, during the period that such Appraisal Reduction Amount continues to exist, shall be reduced to equal the product sum of (xA) the amount of the subject interest portion of the P&I Advance that would otherwise be required without regard to this proviso, multiplied by clause (y), minus the product of (1) a fraction, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction AmountAmount and (2) the per annum Pass-Through Rate (i.e., and for any month, one-twelfth of the denominator of which is equal Pass-Through Rate) applicable to the Stated Principal Balance Class of Certificates to which such Mortgage Loan or REO Mortgage Loan, as Appraisal Reduction Amount is allocated pursuant to Section 4.04(d) and (B) the case may beamount of the principal portion of the P&I Advance that would otherwise be required without regard to this clause (y).
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the Master Servicer or the Special Servicer that a P&I Advance the Master Servicer has become made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent Trustee and the Depositor on or before the related Master Servicer Remittance P&I Advance Date, setting forth the basis for such determination, together with any other information that supports information, including Appraisals (the cost of which may be paid out of the Certificate Account pursuant to Section 3.05(a)) (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property performed within the twelve months preceding such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)Properties, engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or the Special Servicer. IfAs soon as reasonably practical after making such determination, in connection with the foregoing, it is necessary for Special Servicer shall report to the Master Servicer the Special Servicer's determination as to obtain an appraisal, the whether each P&I Advance made with respect to any previous Distribution Date or required to be made with respect to such Distribution Date with respect to any Specially Serviced Mortgage Loan or REO Loan is a Nonrecoverable P&I Advance. The Master Servicer shall so notify be entitled to conclusively rely on such determination by the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund ExpenseServicer. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect to a P&I Advance, the Trustee shall rely on the Master Servicer's determination that the P&I Advance would be a Nonrecoverable Advance if the Trustee determines that it does not have sufficient time to make such determination); provided, however, that that, if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or the Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal AgentTrustee, in its good faith, reasonable discretionaccordance with the standard of care set forth in Section 8.01(a), makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance The Trustee, in determining whether or that not a P&I Advance previously made is is, or a proposed P&I Advance, if made, would be, a Nonrecoverable AdvanceAdvance shall be subject to the standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to make such determination.
(d) In connection with the Special Servicer shall report its determination to recovery by the Master Servicer and or the Master Servicer shall be entitled Trustee of any P&I Advance out of the Certificate Account pursuant to conclusively rely on such determinationSection 3.05(a), provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer subject to the Master Servicernext sentence, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In additionpay itself or the Trustee, as the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts case may be, out of any amounts then on deposit in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master ServicerCertificate Account, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) from the date made (provided, however, no such interest shall accrue during any grace period under a Mortgage Loan) to but not including the date of reimbursement, such interest to be payable, subject to the terms of the related Intercreditor Agreement with respect to the related Loan Pair, first out of late payment charges and Penalty Interest received on the related Mortgage Loan or REO Property during the Collection Period in which such reimbursement is made and then from general collections on the Mortgage Loans then on deposit in the Certificate Account. The Master Servicer shall reimburse itself or the Trustee, as applicable, for so long as such any outstanding P&I Advance is outstanding; provided thatmade thereby as soon as practicable after funds available for such purpose have been received by the Master Servicer, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding payment of principal and interest or Late Collection was received by the Master Servicer on or a Sub-Servicer on its behalf as of prior to the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section Date.
(e) In no event shall be payable in accordance the Trustee make a P&I Advance with the terms of Section 3.05 and Section 3.05A.respect to any Companion Loan.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C25)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m.9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the a Master Servicer or Special Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the applicable Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer's Certificate (and accompanying information) of the Trustee or any similar reports that Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer or Special Servicer may have obtained consistent with for the Servicing Standard subject Mortgage Loan. Absent bad faith, a Master Servicer's determination as to the recoverability of any P&I Advance shall be conclusive and at binding on the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. IfCertificateholders and, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalall cases, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master Servicer, Servicers and the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master Servicer Remittance Date. Interest so accrued on any or the Trustee shall account for that part of the P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.Advances which is attributable to Past G
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m.9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the a Master Servicer or Special Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the applicable Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer's Certificate (and accompanying information) of the Trustee or any similar reports that Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer or Special Servicer may have obtained consistent with for the Servicing Standard subject Mortgage Loan. Absent bad faith, a Master Servicer's determination as to the recoverability of any P&I Advance shall be conclusive and at binding on the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. IfCertificateholders and, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalall cases, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if comparable party under such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerIn the case of each Pooled Mortgage Loan, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent Master Servicers and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section or the Trustee shall be payable in accordance with account for that part of the terms of Section 3.05 and Section 3.05A.P
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys and any or similar reports reports, that the Master Servicer or Special Servicer Person making such determination may have obtained consistent with the Servicing Standard obtained. A copy of any such Officer's Certificate (and at the expense accompanying information) of the Trust Fund, that support such determination by Trustee or the Master Servicer or Special Servicer. If, in connection with Fiscal Agent shall also be promptly delivered to the foregoing, it is necessary for the Master Servicer to obtain an appraisalCertificate Administrator, the Master Servicer shall so notify Controlling Class Representative, the Special Servicer and consult with the Special Master Servicer regarding such appraisalfor the subject Mortgage Loan. The cost Absent bad faith, a Master Servicer's determination as to the recoverability of an appraisal any P&I Advance shall be paid by conclusive and binding on the Trust as an Additional Trust Fund Expense. The Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.29, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.Date.
(e) With regard to such P&I Adva
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m.9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the a Master Servicer or Special Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys and any or similar reports reports, that the Master Servicer or Special Servicer Person making such determination may have obtained consistent with the Servicing Standard obtained. A copy of any such Officer's Certificate (and at the expense accompanying information) of the Trust Fund, that support such determination by Trustee or any Fiscal Agent shall also be promptly delivered to the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalCertificate Administrator, the Master Servicer shall so notify Controlling Class Representative, the Special Servicer and consult with the Special Master Servicer regarding such appraisalfor the subject Mortgage Loan. The cost Absent bad faith, a Master Servicer's determination as to the recoverability of an appraisal any P&I Advance shall be paid by conclusive and binding on the Trust as an Additional Trust Fund Expense. The Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master Servicer, Servicers and the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master Servicer Remittance Date. Interest so accrued on any or the Trustee shall account for that part of the P&I Advance made under this Section shall be payable in accordance with Advances which is attributable to Past Grace Period Loans, and that part of the terms of Section 3.05 and Section 3.05A.P&I Advances which is attributable to Within Grace Period L
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr11)
P&I Advances. (a) On or before 2:00 p.m., New York City time, on each Master Servicer Remittance P&I Advance Date, the Master Servicer shall, subject to Section 4.03(cshall (i) below, satisfy its obligations to make any required P&I Advances apply amounts held in the Certificate Account received after the Determination Date with respect to the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of its obligation to make P&I Advances, or (ii) if such obligationsamounts are insufficient to discharge such obligation, and secondsubject to Section 4.03(c) below, by remitting remit from its own funds to the Trustee Paying Agent for deposit in a into the Distribution Account in an amount equal to the remaining portion aggregate amount of such required P&I Advances, if any, to be made in respect of the related Distribution Date. The Master Servicer may also make P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made. Any amounts held in the Pool Custodial Certificate Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the Pool Custodial Certificate Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the Master Servicer shall not have made any P&I Advance required to be made on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215704) 328383-3478 9356 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215▇▇▇) 328▇▇▇-1258 ▇▇▇▇ (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee (or the Fiscal Agent shall, no later than 11:00 a.m., New York City time, on its behalf) shall such related Distribution Date make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but and (ii) the Fiscal Agent makes such P&I Advance on such date, then the Trustee provisions of Sections 7.01 and 7.02 shall be deemed not to be in default hereunderapply.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer, Servicer or the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of any Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly Scheduled Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Scheduled Payments, in each case net of related Master Servicing Fees and any related Workout Principal Recovery Fees, due or deemed due, as the case may be, in respect of the Mortgage Loans (including including, without limitation, Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during the related Collection Period, in each case to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including received as net income from REO Properties) as of the close of business on the related Determination Date; provided that provided, that, (i) if the Monthly Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, or if the final maturity on any Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, and the Monthly Payment due and owing during the extension period is less than the related Assumed Scheduled Payment, then the Master Servicer shall, as to such Mortgage Loan only, advance only the amount of the Monthly Payment due and owing after taking into account such reduction (net of related Master Servicing Fees and any related Principal Recovery Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to such Required Appraisal Loan, the Master Servicer or the Trustee will be required in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made advance in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues only an amount equal to exist, shall be reduced to equal the product of (xA) the amount of the subject P&I Advance that would otherwise be required without regard to this provisoclause (ii), multiplied by (yB) a fraction, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction Amount, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer that a P&I Advance it has become made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Officers' Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent Trustee and the Depositor on or before the related Master Servicer Remittance P&I Advance Date, setting forth the basis for such determination, together with any other information that supports information, including Appraisals or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property performed within the twelve months preceding such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)Properties, engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect to a P&I Advance, the Trustee, as applicable, shall rely on the Master Servicer's determination that the P&I Advance would be a Nonrecoverable Advance if the Trustee determines that it does not have sufficient time to make such determination); provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal AgentTrustee, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.in
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of the Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the applicable Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer's Certificate (and any similar reports that accompanying information) of the Trustee or the Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer or Special Servicer may have obtained consistent with for the Servicing Standard subject Mortgage Loan. Absent bad faith, a Master Servicer's determination as to the recoverability of any P&I Advance shall be conclusive and at binding on the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. IfCertificateholders and, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalall cases, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The applicable Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan, from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a rated commercial mortgage securitization similar to the securitization effected by this Agreement, (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.28, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section Date.
(e) With regard to such P&I Advances, the applicable Master Servicer, the Trustee or the Fiscal Agent shall be payable in accordance with account for that part of the terms of Section 3.05 and Section 3.05A.P&I Advances which is attributable to Past Grace Period
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr4)
P&I Advances. (a) On or before 2:00 p.m., New York City time, on each Master Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligations, and second, by remitting its own funds to the Trustee for deposit in a Distribution Account in an amount equal to the remaining portion of such required P&I Advances. Any amounts held in the Pool Custodial Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the Pool Custodial Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (215913) 328253-3478 9001 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215913) 328253-1258 9000 (or such alternative number provided by the Master SeS▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New York City time, on such Master Servicer Remittance Date. If after such notice by facsimile, the Trustee does not receive the full amount of such P&I Advances by 11:00 a.m., New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer, the Trustee Servicer or the Fiscal AgentTrustee, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of any Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan), in each case net of related Master Servicing Fees and any related Workout Fees, due or deemed due, as the case may be, in respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during the related Collection Period, in each case to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the related Determination Date; provided that if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues to exist, shall be reduced to equal the product of (x) the amount of the subject P&I Advance that would otherwise be required without regard to this proviso, multiplied by (y) a fraction, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction Amount, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 if such P&I Advance would, if made, constitute a Nonrecoverable Advance, as determined by the Master Servicer, the Special Servicer, the Trustee Servicer or the Fiscal AgentTrustee. The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession, as applicable), engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall conclusively rely on any non-recoverability determination made by the Special Servicer (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person's determination, or to prohibit any such other authorized Person from making a determination, that a P&I Advance constitutes or would constitute a Nonrecoverable Advance); provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal AgentTrustee, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the Servicer and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall ll each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.
Appears in 1 contract
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m.9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the a Master Servicer or Special Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the applicable Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer's Certificate (and accompanying information) of the Trustee or any similar reports that Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer or Special Servicer may have obtained consistent with for the Servicing Standard subject Mortgage Loan. Absent bad faith, a Master Servicer's determination as to the recoverability of any P&I Advance shall be conclusive and at binding on the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. IfCertificateholders and, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalall cases, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if then the Master Servicer has failed shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to make be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance for reasons on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such other than a pooling and servicing agreement. In connection with the DRA/Colonial Office Portfolio Pooled Mortgage Loan, the following provisions shall apply: (a) any determination by the applicable Master Servicer or Special Servicer that such any P&I Advance would made or to be Nonrecoverable P&I Advancemade with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agentif made, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in made independently from any determinations (or the absence of a notice of a determination of nonrecoverability any determinations) made by the Special Non-Trust Master Servicer to the or any other related Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on such Non-Trust Master Servicer, 's or such other Non-Pooled Pari Passu Companion Noteholder's Non-Pooled Pari Passu Companion Loan and (b) if the applicable Master Servicer shall be entitled to make its own determination (or the Trustee, if applicable) determines that such any prior P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a Nonrecoverable Advance, then the applicable Master Servicer (or the Trustee, if applicable) shall notify such Non-Trust Master Servicer and any other related Non-Pooled Pari Passu Companion Noteholder of such determination. In connection with the RRI Hotel Portfolio Pooled Mortgage Loan, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice of the nature described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the applicable Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I ▇&▇ Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly PaymentPooled Mortgage Loan constitutes a Nonrecoverable Advance; and provided, further that, in no event shall interest so accrue (b) if any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan (or any P&I Advance as successor REO Mortgage Loan) is deemed to which the corresponding Late Collection was received by the Master Servicer or constitute a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18)
P&I Advances. (a) On or before 2:00 1:30 p.m., New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, subject to Section 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to end of the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then otherwise held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligationsits obligation to make P&I Advances or (ii) subject to Section 4.03(c) below, and second, by remitting remit from its own funds to the Trustee Certificate Administrator for deposit in a into the Distribution Account in an amount equal to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇&▇ Advances, if any, to be made by the remaining portion subject Master Servicer in respect of such required the related Distribution Date. Each Master Servicer may also make P&I AdvancesAdvances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made by the subject Master Servicer. Any amounts held in the Pool Custodial a Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the Pool Custodial such Collection Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no(▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (215▇▇▇) 328▇▇▇-3478 ▇▇▇▇, in the case of Master Servicer No. 2 (or such alternative number provided by the either Master Servicer to the Trustee in writing) and by telephone at telephone no(▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (215▇▇▇) 328▇▇▇-1258 ▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 2 (or such alternative number provided by either Master Servicer to the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee (or the a Fiscal Agent on its behalf) shall shall, no later than 11:00 a.m., New York City time, on such related Distribution Date make the portion of such P&I Advances that was required to be, but was not, made by the defaulting Master Servicer on such Master Servicer Remittance P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the any Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master ServicerServicer (or, if necessary, by the Trustee or the any Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of for any Distribution Date shall, subject to Section 4.03(c) below, be equal to the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Periodic Payments, in each case net of related Master Servicing Fees and (and, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related Workout Feesfees similar to Master Servicing Fees payable to third parties with respect to the Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto pursuant to the Outside Servicing Agreement), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto) thereto on their respective Due Dates during the related Collection Period, in each case Period to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination Collection Period (or, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, actually received by the Certificate Administrator or Master Servicer No. 1 as of 1:00 p.m., New York City time, on the related P&I Advance Date); provided that that, (i) if the Periodic Payment on any Trust Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of the Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the Outside Servicing Agreement), or if the final maturity on any Trust 212 Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of the Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of the Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Trust Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to existadvance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, shall be reduced as the case may be, only an amount equal to equal the product sum of (xA) the amount of the subject interest portion of the P&I Advance that would otherwise be required without regard to this proviso, multiplied by clause (y), minus 1/12th of the product of (1) such Appraisal Reduction Amount (or, in the case of a fractionTrust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto that is part of a Loan Combination, solely the numerator portion of which any Appraisal Reduction Amount with respect to such Loan Combination that is equal allocable to the Stated Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, net in accordance with, or as contemplated by, the definition of "Appraisal Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for such Distribution Date applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (or the applicable portion thereof) is allocated pursuant to Section 4.04(e), weighted on the basis of the respective portions of such Appraisal Reduction AmountAmount allocable to such Classes, and (B) the denominator amount of which is equal the principal portion of the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1, the Trustee and any Fiscal Agent, as applicable, shall each be required to make P&I Advances (and shall obtain recovery with respect thereto) with respect to the Stated Principal Balance of Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto in the same way that such party is required to make and recover P&I Advances with respect to any other Trust Mortgage Loan or REO Trust Mortgage Loan, as Loan in the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 if such P&I Advance would, if made, constitute a Nonrecoverable Advance, as determined by the Mortgage Pool. If Master Servicer, the Special ServicerServicer No. 1, the Trustee or the any Fiscal Agent. The determination by the Master Servicer or Special Servicer that Agent makes a P&I Advance has become a Nonrecoverable P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or that any proposed P&I Advancesuccessor REO Trust Mortgage Loan with respect thereto, if made pursuant to this Section 4.03, would constitute a Nonrecoverable P&I Advance, then it shall be evidenced by an Officer's Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession), engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall promptly so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Outside Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that of each such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent so made thereby and shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that seek reimbursement for such P&I Advance would be a Nonrecoverable P&I Advance. If (together with interest thereon) out of amounts otherwise payable with respect to the Special Servicer determines Outside Serviced Loan Combination that a P&I Advance would be a Nonrecoverable Advance includes such Outside Serviced Trust Mortgage Loan or that a P&I Advance previously made is a Nonrecoverable Advanceany successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by, and out of amounts specified for such purpose under, the Special Servicer shall report its determination to related Co-Lender Agreement and/or the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I AdvancesOutside Servicing Agreement.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C5)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligations, and second, by remitting its own funds obligation to the Trustee for deposit in a Distribution Account in an amount equal to the remaining portion of make such required P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of any Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan), in each case net of related Master Servicing Fees and any related Workout Fees, due or deemed due, as the case may be, in respect of the Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) on their respective Due Dates during the related Collection Period, in each case to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the related Determination Date; provided that if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues to exist, shall be reduced to equal the product of (x) the amount of the subject P&I Advance that would otherwise be required without regard to this proviso, multiplied by (y) a fraction, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction Amount, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 if such P&I Advance would, if made, constitute a Nonrecoverable Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession), engineers' reports, environmental surveys and any similar reports that the Master Servicer or Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of the Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any related Workout Feescomparable master servicing fees under the Non-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys and any or similar reports reports, that the Master Servicer or Special Servicer Person making such determination may have obtained consistent with the Servicing Standard obtained. A copy of any such Officer's Certificate (and at the expense accompanying information) of the Trust Fund, that support such determination by Trustee or the Master Servicer or Special Servicer. If, in connection with Fiscal Agent shall also be promptly delivered to the foregoing, it is necessary for the Master Servicer to obtain an appraisalCertificate Administrator, the Master Servicer shall so notify Controlling Class Representative, the Special Servicer and consult with the Special Master Servicer regarding such appraisalfor the subject Mortgage Loan. The cost Absent bad faith, a Master Servicer's determination as to the recoverability of an appraisal any P&I Advance shall be paid by conclusive and binding on the Trust as an Additional Trust Fund Expense. The Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each holder of each Non-Pooled Pari Passu Companion Loan (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so -199- long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.28, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.Date.
(e) With regard to such P&I Ad
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer’s Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer’s Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's ’s records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's ’s Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m.9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by the a Master Servicer or Special Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's ’s Certificate delivered to the TrusteeDepositor, the applicable Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' ’ reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s Certificate (and accompanying information) of the Trustee or any similar reports that Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer or Special Servicer may have obtained consistent with for the Servicing Standard subject Mortgage Loan. Absent bad faith, a Master Servicer’s determination as to the recoverability of any P&I Advance shall be conclusive and at binding on the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. IfCertificateholders and, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisalall cases, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer’s Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s Certificate to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “Nonrecoverable P&I Advance” herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if then the Master Servicer has failed shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to make be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “Nonrecoverable Advance”. If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance for reasons on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such other than a pooling and servicing agreement. In connection with the Beacon Seattle & DC Portfolio Pooled Mortgage Loan, any determination by the applicable Master Servicer or Special Servicer for the Beacon Seattle & DC Portfolio Loan Group that such any P&I Advance would made or to be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior made with respect to the times specified in Section 4.03(aBeacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) that such P&I Advance is or, if made, would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in made independently from any determinations (or the absence of a notice of a determination of nonrecoverability any determinations) made by the Special Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pooled Mortgage Loan, after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, and in connection with the Beaver Brook Apartments Pooled Mortgage Loan, if (x) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the Master Servicereffect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, the Master Servicer shall pursuant to such agreement, that any debt service advance made or to be entitled made with respect to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workoutrelated Non-Delayed Reimbursement Amounts in Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of prior P&I Advances collections on the applicable such Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if (or such amounts were unreimbursed P&I Advances.
(d) The Master ServicerREO mortgage loan), the then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇▇&▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or Pooled Mortgage Loan constitutes a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.Nonrec
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr16)
P&I Advances. (a) On or before 2:00 1:30 p.m., New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, subject to Section 4.03(c) below, satisfy its obligations to make any required P&I Advances with respect to end of the related Distribution Date in respect of the Mortgage Pool (other than the Loan Group Trust Mortgage Loans Collection Period or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account amounts then otherwise held in the Pool Custodial Account for future distribution to Certificateholders in subsequent months in discharge of such obligationsits obligation to make P&I Advances or (ii) subject to Section 4.03(c) below, and second, by remitting remit from its own funds to the Trustee Certificate Administrator for deposit in a into the Distribution Account in an amount equal to the remaining portion aggregate amount of such required P&I Advances, if any, to be made by the subject Master Servicer in respect of the related Distribution Date. Each Master Servicer may also make P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made by the subject Master Servicer. Any amounts held in the Pool Custodial a Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the Pool Custodial such Collection Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no(704) 715-0036, in the case of Master Servicer No. 1, (913) 253-900▇, ▇▇ ▇▇▇ ▇▇▇▇ of Master Servicer No. 2, and (215) 328-3478 328-▇▇▇▇, ▇▇ ▇▇▇ case of Master Servicer No. 3 (or such alternative number alter▇▇▇▇▇▇ ▇▇▇▇▇▇ provided by the any Master Servicer to the Trustee in writing) and by telephone at telephone no(704) 593-7768, in the case of Master Servicer No. 1, (215913) 328253-1258 900▇ ▇▇ (▇▇▇) ▇▇▇-9400, in the case of Master Servicer No. ▇, ▇▇▇ (▇▇▇) 328-▇▇▇▇, ▇▇ ▇▇▇ case of Master Servicer No. 3 (or such alternative number provided by the Master Sealter▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ provided by any Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee (or the a Fiscal Agent on its behalf) shall shall, no later than 11:00 a.m., New York City time, on such related Distribution Date make the portion of such P&I Advances that was required to be, but was not, made by the defaulting Master Servicer on such Master Servicer Remittance P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply. If the Trustee fails to make any such P&I Advance on the related Distribution Date, but the any Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master ServicerServicer (or, if necessary, by the Trustee or the any Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) in respect of for any Distribution Date shall, subject to Section 4.03(c) below, be equal to the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Periodic Payments, in each case net of related Master Servicing Fees and (and, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related Workout Feesfees similar to Master Servicing Fees payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Outside Servicing Agreements), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto) thereto on their respective Due Dates during the related Collection PeriodPeriod (or, in each the case of a Type II Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which the subject Distribution Date occurs) to the extent such amount was not paid by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination Collection Period (or, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, actually received by the Certificate Administrator or Master Servicer No. 1 as of 1:00 p.m., New York City time, on the related P&I Advance Date); provided that that, (i) if the Periodic Payment on any Trust Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), or if the final maturity on any Trust Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon, the amount of each P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO Trust Mortgage Loan, as the case may be, during the period that such Appraisal Reduction Amount continues applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to existadvance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, shall be reduced as the case may be, only an amount equal to equal the product sum of (xA) the amount of the subject interest portion of the P&I Advance that would otherwise be required without regard to this provisoclause (ii), multiplied by minus 1/12th of the product of (y1) such Appraisal Reduction Amount (or, in the case of a fractionTrust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto that is part of a Loan Combination, solely the numerator portion of which any Appraisal Reduction Amount with respect to such Loan Combination that is equal allocable to the Stated Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, net in accordance with, or as contemplated by, the definition of "Appraisal Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for such Distribution Date applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (or the applicable portion thereof) is allocated pursuant to Section 4.04(d) and, if any portion of such Appraisal Reduction AmountAmount is allocable thereto pursuant to Section 4.04(d), the Class A-MFL REMIC II Regular Interest, weighted on the basis of the respective portions of such Appraisal Reduction Amount allocable to such Classes and, if applicable, the Class A-MFL REMIC II Regular Interest, and (B) the denominator amount of which is equal the principal portion of the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1, the Trustee and any Fiscal Agent, as applicable, shall each be required to make P&I Advances (and shall obtain recovery with respect thereto) with respect to the Stated Principal Balance of Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto in the same way that such party is required to make and recover P&I Advances with respect to any other Trust Mortgage Loan or REO Trust Mortgage LoanLoan in the Mortgage Pool. If Master Servicer No. 1, as the case may beTrustee or any Fiscal Agent makes a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify the relevant Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to such Outside Serviced Loan Combination that includes such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by, and out of amounts specified for such purpose under, the related Co-Lender Agreement and/or the relevant Outside Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance, as determined by the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent. The determination by a Master Servicer that it has made (or the determination by the Special Servicer that the Master Servicer or Special Servicer that a P&I Advance has become made) a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.03made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the Fiscal Agent (if any), the Trustee, the Special Servicer (in the case of a determination made by the Master Servicer), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent Certificate Administrator and the Depositor on or before the related Master Servicer Remittance P&I Advance Date, setting forth the basis for such determination, together with any other information that supports information, including Appraisals (the cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e)) (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property performed within the 12 months preceding such determination, including any appraisal (which appraisal shall have been conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)Properties, engineers' reports, environmental surveys and any similar reports that the subject Master Servicer or the Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer or Special Servicer. If, in connection with the foregoing, it is necessary for the Master Servicer to obtain an appraisal, the Master Servicer shall so notify the Special Servicer and consult with the Special Servicer regarding such appraisal. The cost of an appraisal shall be paid by the Trust as an Additional Trust Fund Expense. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the subject Master Servicer or the Special Servicer. In making a recoverability determination the applicable Person will be entitled, but not obligated, to consider (among other things) the obligations of the related Mortgagor under the terms of the related Trust Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any outstanding Nonrecoverable Advances the reimbursement of which is being deferred pursuant to Section 3.05(a), together with (to the extent accrued and unpaid) interest on such Advances. In addition, any such Person may update or change its recoverability determinations at any time, and the Master Servicers (consistent with the Servicing Standard) and the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Special Servicer's possession for such purposes. With respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loan with respect thereto, Master Servicer No. 1 shall (subject to the second succeeding sentence below) make its determination that it has made a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any determination made by the servicer with respect to a commercial mortgage securitization holding the promissory note for one of the related Non-Trust Mortgage Loans. If Master Servicer No. 1 determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, would be, or is, as applicable, a Nonrecoverable Advance, Master Servicer No. 1 will be required to provide the servicer of each securitization that holds the promissory note for a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) Master Servicer No. 1 reasonably believes, in accordance with the Servicing Standard, that a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto constitutes or may, if made, constitute a Nonrecoverable P&I Advance; provided, howeverand (ii) either (A) Master Servicer No. 1 has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a response from the applicable Outside Servicer indicating that an appraisal with respect to the related Mortgaged Property would be performed within 60 days of the date of such response or has been performed within the prior 12-month period (or such shorter period as Master Servicer No. 1 reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of such request, and (y) within 60 days of the date of such response, a copy of an appraisal report with respect to the related Mortgaged Property, relating to an appraisal that has been performed within the 12-month period (or such shorter period as Master Servicer No. 1 reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of receipt by Master Servicer No. 1, that if complies with the requirements for such an appraisal under the terms of the relevant Outside Servicing Agreement or this Agreement, or (B) Master Servicer No. 1 has failed made a request for an appraisal with respect to make a P&I Advance for reasons other than a determination the related Mortgaged Property from the applicable Outside Servicer and has been advised by the Master Servicer or Special applicable Outside Servicer that such P&I Advance would an appraisal with respect to the related Mortgaged Property will not be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance performed within the time periods required by Section 4.03(aspecified in clause (ii)(A) unless the Trustee or the Fiscal Agentabove, in its good faith, reasonable discretion, makes a determination prior then Master Servicer No. 1 may have an appraisal performed with respect to the times related Mortgaged Property by an Independent Appraiser or other expert in real estate matters, which appraisal shall take into account the factors specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and the Master Servicer shall be entitled to conclusively rely on such determination, provided that in the absence of a notice of a determination of nonrecoverability by the Special Servicer to the Master Servicer, the Master Servicer shall be entitled to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advances.
(d) The Master Servicer, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds) for so long as such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this Section has not elapsed as of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior to the expiration of such grace period, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue on any P&I Advance as to which the corresponding Late Collection was received by the Master Servicer or a Sub-Servicer on its behalf as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.3.18
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CD 2007-Cd4 Commercial Mortgage Trust)
P&I Advances. (a) On or before 2:00 p.m., 1:00 p.m. (New York City time, ) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) below, satisfy remit from its obligations to make any required P&I Advances with respect own funds to the related Certificate Administrator for deposit into the Distribution Date Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto), first, by transferring to the Trustee for deposit in the Distribution Account ii) apply amounts then held in the Pool Custodial such Master Servicer's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligationsobligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and second(ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, by remitting its own funds that the Master Servicer shall give preference to the Trustee amounts in clause (ii) of this sentence for deposit in a Distribution Account in an amount equal to the remaining portion purposes of such required making P&I Advances. Any amounts held in the Pool Custodial either Master Servicer's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the Pool Custodial its Collection Account on or before prior to the next succeeding Determination Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 4:00 p.m., 3:30 p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the such Master Servicer by facsimile transmission sent to telecopy no. (215) 328-3478 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (215) 328-1258 (or such alternative number provided by the Master Se▇▇▇▇▇▇ ▇▇ ▇▇▇ Trustee in writing) as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice by facsimile, the Trustee Certificate Administrator does not receive the full amount of such P&I Advances by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer on such Master Servicer Remittance Date. If the Trustee fails with respect to make any such P&I Advance on the related Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the each Master Servicer, Servicer (or by the Trustee or the Fiscal Agent, as the case may beapplicable, pursuant if such Master Servicer fails to the first paragraph of Section 4.03(ado so) in respect of any Distribution Date shallDate, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments (except with respect to any Serviced Companion Loan)Payments, in each case net of any related Master Servicing Fees and (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Workout FeesNon-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans (including Balloon Mortgage Loans delinquent as to their respective Balloon Payments) which such Master Servicer is the applicable Master Servicer and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Loan Group Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto) thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Mortgagor or otherwise collected (including as net income from REO Properties) Trust as of the close of business on the related Determination Date; provided that that, if it is determined that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage Required Appraisal Loan, then, in then the event interest portion of subsequent delinquencies thereon, the amount of each any P&I Advance, if any, Advance required to be made in respect of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as for the case may be, during the period that such Appraisal Reduction Amount continues to exist, related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (xi) the amount of the subject interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (yii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date, net of such the related Appraisal Reduction Amount, and the denominator of which is shall equal to the Stated Principal Balance of such Mortgage Required Appraisal Loan or REO Mortgage Loan, as the case may beimmediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made under this Section 4.03 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, as determined by the Master Servicer, the Special Servicerif applicable, the Trustee or the Fiscal Agent. The determination by the Master Servicer or Special Servicer ) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has become made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made pursuant by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to this Section 4.03consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the TrusteeDepositor, the Special Servicer Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a determination made by the Master Servicerproposed P&I Advance), the Master Servicer (in the case of a determination made by the Special Servicer), the Fiscal Agent and the Depositor on or before the related Master Servicer Remittance Date, setting forth the basis for such determination, together with any other information that supports such determination, including any appraisal (which appraisal shall have been conducted accompanied by a copy of an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking into account the factors specified in Section 3.19), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties (to Property or REO Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers' reports, environmental surveys and any or similar reports reports, that the Master Servicer or Special Servicer Person making such determination may have obtained consistent with the Servicing Standard obtained. A copy of any such Officer's Certificate (and at the expense accompanying information) of the Trust Fund, that support such determination by Trustee or the Master Servicer or Special Servicer. If, in connection with Fiscal Agent shall also be promptly delivered to the foregoing, it is necessary for the Master Servicer to obtain an appraisalCertificate Administrator, the Master Servicer shall so notify Controlling Class Representative, the Special Servicer and consult with the Special Master Servicer regarding such appraisalfor the subject Mortgage Loan. The cost Absent bad faith, a Master Servicer's determination as to the recoverability of an appraisal any P&I Advance shall be paid by conclusive and binding on the Trust as an Additional Trust Fund Expense. The Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to rely, conclusively, conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a determination prior to the times specified in Section 4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. If the Special Servicer determines that a P&I Advance would be a Nonrecoverable Advance or that a P&I Advance previously made is a Nonrecoverable Advance, the Special Servicer shall report its determination to the Master Servicer and then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be entitled accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to conclusively rely be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such determination, provided comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the absence related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of a "Nonrecoverable Advance". If the applicable Master Servicer receives notice of a nonrecoverability determination of nonrecoverability by the Special Servicer another party to the Master Servicerthis Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, the such Master Servicer shall be entitled promptly forward such notice and the accompanying information to make its own determination that such P&I Advance is a Nonrecoverable Advance. In addition, the Master Servicer and Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I Advances on the applicable Mortgage Loan that have not been repaid by related comparable party under the related Mortgagor for the purposes of nonrecoverability determinations as if such amounts were unreimbursed P&I Advancesother pooling and servicing agreement.
(d) The Master ServicerServicers, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, compounded annually, accrued on the amount of each P&I Advance made thereby under this Section 4.03 (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding; provided thatoutstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the grace period for Late Collection of the delinquent Monthly Payment as to principal and/or interest in respect of which a such P&I Advance was made under this Section has not elapsed been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as of the time to which such P&I Advance was maderelates; and (ii) then, then the total interest so accrued on after such P&I Advance prior is reimbursed, but only if and to the expiration extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as practicable after funds available for such grace periodpurpose are deposited in such Master Servicer's Collection Account, shall not exceed the amount of Default Charges, if any, collected in connection with the late payment of such delinquent Monthly Payment; and provided, further that, in no event shall interest so accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Master Servicer or a Sub-Servicer on its behalf Trust as of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this Section shall be payable in accordance with the terms of Section 3.05 and Section 3.05A.Date.
(e) With regard to such P&I Adva
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Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr10)