Common use of P&I Advances Clause in Contracts

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 Split 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. (704) 593-7740 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the Master 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 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, 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 Split 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 P&I Advance. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master 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 Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon a determination that any P&I Advance previously made with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable P&I Advance, the Special Servicer shall report to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled to conclusively rely on such determination. (d) The Master Servicer, 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) 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account. The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the Pool Custodial Account.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Fund Corp Comm Mort Tr 2003-C1)

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 (or 3:00 p.m. New York City time if the last day of the Collection Period is deemed to be the 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 Split 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 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. (704) 593-7740 7735 (or such alternative number provided by the Master Servicer to the Trustee Ser▇▇▇▇▇ ▇▇ ▇▇▇ ▇rustee in writing) and by telephone at telephone no. (704) 593-7682 7820 or (▇▇▇704) ▇▇▇593-▇▇▇▇ 7831 (or such alternative number provided by the Master Servicer to the Trustee ▇▇ ▇▇▇ ▇▇▇▇▇▇ Ser▇▇▇▇▇ ▇▇ ▇▇▇ ▇rustee 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 Periodic Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, 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 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 Split 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, 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 last day of related Determination DateCollection Period; provided that provided, 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 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 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. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. IfOn the fourth Business Day before each Distribution Date, 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 the Special Servicer and consult with the Special Servicer regarding be entitled to conclusively rely on such appraisaldetermination. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 that, if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master 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. Upon The Trustee in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be subject to the Special Servicer shall report standards applicable to the Master Servicer hereunder. (d) In connection with the Special Servicer's determination. The recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely pay itself or the Trustee, as the case may be, out of any amounts then on such determination. (d) The Master Servicerdeposit in the Certificate Account, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made to but not including the date of reimbursement such P&I Advance is outstanding; provided thatinterest to be payable, if subject to the grace period for the delinquent Monthly Payment as to which a P&I Advance was made under this section has not elapsed as terms of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior Intercreditor Agreement with respect to the expiration related Loan Pair, first out 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; charges and provided, further, that, in no event shall interest so accrue Penalty Interest received 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited have been received by the Master Servicer, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the Pool Custodial Accountcorresponding payment of principal and interest or Late Collection was received by the Master Servicer on or prior to the related P&I Advance Date. (e) In no event shall the Master Servicer or the Trustee make a P&I Advance with respect to any Companion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002-C2)

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 Split 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 deposited in the Distribution Account the Available Distributions Amount for the Next Distribution Date or 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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the Master 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 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 P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply. To the extent that the Master Servicer Remittance Date. If fails to remit funds required to be remitted by it to the Trustee fails to make any such P&I Advance by the close of business on the related Business Day immediately preceding the Distribution Date, but the Fiscal Agent makes such P&I Advance on such date, then Master Servicer shall be required to compensate the Trustee shall be deemed not to be in default hereunderan amount agreed upon by the Trustee and the Master Servicer. (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 sum of (x) the aggregate the Quarterly Pay Interest Deposits in respect of the Quarterly Pay Loans minus the aggregate amount withdrawn from the Quarterly Pay Interest Reserve Account for such Distribution Date and (y) the aggregate of all Monthly Scheduled Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, in each case net of related Master Servicing Fees and any related Workout 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 Split 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 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 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 Master Servicing Fees and any related 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. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 such determinationinformation, including an appraisal (which appraisal shall have Appraisals or, if no such Appraisal has 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 performed pursuant to this Section 3.184.03(c), related Mortgagor operating statements and financial statements, budgets and rent rolls a copy of an Appraisal of the related Mortgaged Properties (to Property performed within the extent available and/or in the Master Servicer's or the Special Servicer's possession)twelve months preceding such determination, if available, engineers' reports, environmental surveys and any similar reports that the Master 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. 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 Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon The Trustee in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be subject to the Special Servicer shall report standards applicable to the Master Servicer hereunder. (d) Except as set forth herein, in connection with the Special Servicer's determination. The recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section (a) the Master Servicer shall be entitled to conclusively rely on such determination. (d) The Master Servicer, pay itself and the Trustee and out of any amounts then on deposit in the Fiscal Agent shall each be entitled to receive 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 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through from the date that such Default Charges were received); and (ii) then, if and made to the extent that such Default Charges are insufficient to cover interest, but not before if including the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out date of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Accountreimbursement. The Master Servicer shall, shall reimburse itself and the Trustee for any outstanding P&I Advance in accordance with Section 3.05(a), ) as soon as practicable. The Master Servicer shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in have been received by the Pool Custodial AccountMaster Servicer.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

P&I Advances. (a) On or before No later than 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 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 Split 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. (704) 593715-7740 0036 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 7836 or (▇▇▇704) ▇▇▇593-▇▇▇▇ 7867 (or such alternative number provided by the Master Servicer to the Trustee ▇▇ ▇▇▇ ▇▇▇▇▇▇ Ser▇▇▇▇▇ ▇▇ ▇▇▇ ▇rustee 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 Scheduled Payments, in each case net of related Master Servicing Fees and any (and, in the case of the Non-Serviced Mortgage Loan, servicing fees due to the related Workout FeesNon-Serviced Master Servicer, to the extent not otherwise so paid pursuant to the related 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 Split 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 in each case 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 last day of related Determination DateCollection Period; provided 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 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 conclusively rely on such determination by the Special Servicer and consult with the Special Servicer regarding such appraisalServicer. The Trustee and the Fiscal Agent (i) shall be entitled to rely, conclusively, on any determination by the Master Servicer and (ii) shall conclusively rely on any determination by 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 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. Upon The Trustee, in determining whether or not a determination that any P&I Advance previously made is, or a proposed P&I Advance, if made, would be, a Nonrecoverable Advance 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. With respect to any Serviced Securitized Companion Loan, the Master Servicer will be required to make its determination that it has made a P&I Advance on the related Mortgage Loan that is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to the related Mortgage Loan independently of any determination made by any other servicer under any Other Pooling and Servicing Agreement in respect of any related Companion Loan. Upon making such a Specially Serviced Loan or REO Loan determination of nonrecoverability (and upon any reversal of a determination that a P&I Advance is a Nonrecoverable P&I Advance), the Special Servicer shall report to the Master Servicer shall promptly notify in writing (together with supporting evidence for such determination) the Special Servicer's determination. The related Companion Holder(s) (and any trustee and servicer under a related Other Pooling and Servicing Agreement). (d) In connection with the recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely pay itself or the Trustee, as the case may be, out of any amounts then on such determination. (d) The Master Servicerdeposit in the Certificate Account, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement, such interest to which a P&I Advance was made under this section has not elapsed as of the time such P&I Advance was madebe payable, then the total interest so accrued on such P&I Advance prior subject 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 terms of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this section shall be payable: (i) firstIntercreditor Agreement with respect to the related Loan Pair, in accordance with Sections 3.05 and 3.26, first out of any Default Charges collected late payment charges and Penalty Interest received on or in respect of the related Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited have been received by the Master Servicer, and in no event shall interest 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 prior to the related P&I Advance Date. (e) In no event shall the Master Servicer or the Trustee make a P&I Advance with respect to any Companion Loan. (f) Notwithstanding the foregoing, with respect to the Non-Serviced Mortgage Loans, the Master Servicer shall make its determination that it has made a P&I Advance on such Non-Serviced Mortgage Loan that is a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Non-Serviced Mortgage Loan independently of any determination made by any Non-Serviced Master Servicer under the related Non-Serviced Mortgage Loan Pooling Agreement in respect of such Non-Serviced Companion Loan. If the Master Servicer determines that a proposed P&I Advance with respect to any such Non-Serviced Mortgage Loan if made, or any outstanding P&I Advance with respect to such Non-Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the related Non-Serviced Master Servicer written notice of such determination promptly after such determination. If the Master Servicer receives written notice from any Non-Serviced Master Servicer that it has determined, with respect to the related Non-Serviced Companion Loan, that any proposed advance of principal and/or interest with respect to such Non-Serviced Companion Loan would be, or any outstanding advance of principal and/or interest is, a nonrecoverable advance of principal and/or interest, then such determination shall be binding on the Certificateholders and none of the Master Servicer or the Trustee shall make any additional P&I Advances with respect to the related Non-Serviced Mortgage Loan unless the Master Servicer has consulted with the related Non-Serviced Master Servicer and they agree that circumstances with respect to the related Whole Loan have changed such that a proposed future P&I Advance in respect of the related Non-Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance; provided, however, that the determination of any Non-Serviced Master Servicer shall not be binding on the Certificateholders, and the Master Servicer or the Trustee, as applicable, shall make its own determination of recoverability in the Pool Custodial Accountevent that the Non-Serviced Master Servicer that made such determination is not approved as a master servicer by each of S&P and Moody's. Notwithstanding the foregoing, the Master Servicer shall con▇▇▇▇▇ ▇o have the discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable P&I Advance with respect to such Non-Serviced Mortgage Loan. Once such a determination is made by the Master Servicer or the Master Servicer receives written notice of such determination by the related Non-Serviced Master Servicer, none of the Master Servicer or the Trustee shall make any additional P&I Advances with respect to the applicable Non-Serviced Mortgage Loan until the Master Servicer has followed the process set forth in this paragraph. In the event that the Master Servicer receives notice from any of Moody's or S&P that it is no longer approved as a master servicer for ▇▇▇▇▇▇cial mortgage securitizations, it shall promptly notify each Non-Serviced Master Servicer. The Master Servicer shall not be required to abide by any determination of nonrecoverability by a Non-Serviced Master Servicer if such Non-Serviced Master Servicer is no longer approved as a servicer for commercial securitizations by any of the Rating Agencies then rating the related Companion Loan Securities.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C33)

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 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 Split 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 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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the 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 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 Periodic Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, 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 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 Split 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 provided, 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 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 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. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. IfOn the fourth Business Day before each Distribution Date, 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 the Special Servicer and consult with the Special Servicer regarding be entitled to conclusively rely on such appraisaldetermination. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon The Trustee in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be subject to the Special Servicer shall report standards applicable to the Master Servicer hereunder. (d) In connection with the Special Servicer's determination. The recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely pay itself or the Trustee, as the case may be, out of any amounts then on such determination. (d) The Master Servicerdeposit in the Certificate Account, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made to but not including the date of reimbursement such interest to be payable, subject to the terms of a Co-Lender 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; provided, however, that no interest shall accrue on any P&I Advance is outstanding; provided that, made with respect to a Mortgage Loan if the grace period for the delinquent Monthly related Periodic 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 is received prior to the due date of such Mortgage Loan or the expiration of such any applicable grace period. To the extent the Master Servicer receives late payment charges or Penalty Interest on a Mortgage Loan for which interest on Advances related to such Mortgage Loan has been paid from general collections on deposit in the Certificate Account during the preceding 12-month period and not previously reimbursed, the Master Servicer shall not exceed deposit in the Certificate Account, on or prior to the P&I Advance Date following the collection of such late payment charges or Penalty Interest, an amount equal to the lesser of (i) the amount of Default Charges, if any, collected in connection with the late payment charges or Penalty Interest received on such Mortgage Loan or (ii) the amount of interest paid to the Master Servicer on the related P&I Advance for such delinquent Monthly Payment; Mortgage Loan during such 12-month period for which the Trust Fund has not been previously reimbursed. The Master Servicer shall reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby as soon as practicable after funds available for such purpose have been received by the Master Servicer, 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 on or a Sub-Servicer on its behalf as of prior to the related P&I Advance Date. (e) In no event shall the Master Servicer Remittance Date. Interest so accrued on any or the Trustee make a P&I Advance made under this section shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of respect to any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account. The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the Pool Custodial AccountCompanion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)

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 Split 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. (704) 593715-7740 0036 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 7836 or (▇▇▇704) ▇▇▇593-▇▇▇▇ 7867 (or such alternative number provided by the Master Servicer to the Trustee ▇▇ ▇▇▇ ▇▇▇▇▇▇ Ser▇▇▇▇▇ ▇▇ ▇▇▇ ▇rustee 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 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 Fiscal Agent makes such P&I Advance on such date, then such failure of the Trustee shall be deemed not to be in default hereundercured. (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) and Section 4.03(e) below, equal the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, in each case net of related Master Servicing Fees (and, in the case of the One & Two International Place Loan and any the 450 West 33rd Street Loan, servicing fees due to the 2005-C17 Master ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇nt not so otherwise paid pursuant to the related Workout Fees, 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 Split 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 2005-C17 Serviced Mortgage Loans, 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 2005-C17 Serviced Mortgage Loans, to the extent such amount was required to be advanced by the 2005-C17 Master Servicer pursuant to the 2005-C17 Pooling and Servicing Agreement and the 2005-C17 Master Servicer failed to make such advance, the Master Servicer shall be required to make such P&I Advance only to the extent that 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, the Trustee or the Fiscal Agent 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, 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 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 (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 an 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 3.18), 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 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 appraisalServicer. 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 the Fiscal Agent 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 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. Upon ; provided, further, however, if the Trustee fails to make such Servicing Advance for reasons other than a determination by the Trustee that such Servicing Advance would be a Nonrecoverable Advance, the Fiscal Agent shall make such Servicing Advance within the time periods required by Section 4.03(a) unless the Fiscal Agent in good faith, makes a determination that any such P&I Advance would be a Nonrecoverable Advance. The Trustee, in determining whether or not a P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, the Special Servicer if made, would be, a Nonrecoverable Advance shall report be subject to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to conclusively rely on make such determination. (d) The In connection with the recovery by the Master Servicer, the Trustee and or the Fiscal Agent of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall each be entitled to receive pay itself, the Trustee or the Fiscal Agent, as the case may be, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement such interest to which a P&I Advance was made under this section has not elapsed as be payable, subject to the terms of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior Intercreditor Agreement with respect to the expiration related Loan Pair, first out 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; charges and provided, further, that, in no event shall interest so accrue Penalty Interest received 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited have been received by the Master Servicer, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the Pool Custodial Accountcorresponding payment of principal and interest or Late Collection was received by the Master Servicer on or prior to the related P&I Advance Date. (e) In no event shall the Master Servicer, the Trustee or the Fiscal Agent make a P&I Advance with respect to any Companion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C18)

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 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 Split 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, and second(ii) subject to Section 4.03(c) below, by remitting remit from its own funds , or (iii) remit from certain late charges and Penalty Interest or recoveries from Advances pursuant to Section 3.11(d), 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 first from clause (iii) and then 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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the 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 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 (i) the aggregate of all Monthly Scheduled Payments (other than Balloon Payments) and any Assumed Monthly 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 Split 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 and (ii) with respect to each Semi-Annual Mortgage Loan for which there is no Due Date in the month in which such Distribution Date falls, the Semi-Annual Loan Interest Advance Amount for such Semi-Annual Mortgage Loan and such Distribution Date; provided that provided, that, (i) 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 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. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 such determinationinformation, including Appraisals (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an appraisal (which appraisal shall have been conducted by an Independent Appraiser Appraisal of the related Mortgaged Property performed within the 12-month period twelve months preceding such determination (or after a material adverse change in accordance with the standards Mortgaged Property if the Master Servicer has actual knowledge of a material adverse change in the condition of the Appraisal Institute taking into account the factors specified in Section 3.18related Mortgaged Property within such 12 month period)), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. IfOn the fourth Business Day before each Distribution Date, 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 the Special Servicer and consult with the Special Servicer regarding be entitled to conclusively rely on such appraisaldetermination. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance (and with respect to a P&I Advance, 138 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 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. Upon The Trustee in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be subject to the Special Servicer shall report standards applicable to the Master Servicer hereunder. (d) In connection with the Special Servicer's determination. The recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely on such determination. (d) The Master Servicerpay itself or the Trustee, as the Trustee and the Fiscal Agent shall each be entitled to receive case may be, 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) for so long as from the date made to but not including the date of reimbursement such P&I Advance is outstanding; provided that, if the grace period for the delinquent Monthly Payment as interest 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges late payment charges and Penalty Interest collected on or in respect of the any Mortgage Loan or REO Loan as to during the same Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received)is reimbursed; and (ii) then, if and to the extent that such Default Charges late payment charges and Penalty Interest are insufficient to cover interestinsufficient, but not before if only after the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Certificate Account. Under no circumstances shall the Master Servicer or the Trustee be entitled to recover interest on any portion of a P&I Advance represented by a Semi-Annual Loan Interest Advance Amount so long as no payment default exists under such Semi-Annual Mortgage Loan, and if any such payment default does exist, the Master Servicer shall be entitled to recover interest on any such P&I Advance only from and after the Due Date as to which such default occurred. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited have been received by the Master Servicer, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the Pool Custodial Accountcorresponding Late Collection was received by the Master Servicer on or prior to the related P&I Advance Date. (e) Notwithstanding anything to the contrary set forth in Section 4.03(d), interest will accrue on each P&I Advance made in respect of any Grace Mortgage Loan from the end of the grace period for the related Scheduled Payment until such P&I Advance is reimbursed.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

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 Split 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. (704) 593715-7740 0036 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 7836 or (▇▇▇704) ▇▇▇593-▇▇▇▇ 7867 (or such alternative number provided by the Master Servicer to the Trustee ▇▇ ▇▇▇ ▇▇▇▇▇▇ Ser▇▇▇▇▇ ▇▇ ▇▇▇ ▇rustee 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 Scheduled Payments, 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 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 Split 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, 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 DateCollection Period provided 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; provided that 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 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 appraisalServicer. 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. Upon The Trustee, in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, the Special Servicer if made, would be, a Nonrecoverable Advance shall report be subject to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to conclusively rely on make such determination. (d) The In connection with the recovery by the Master ServicerServicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Trustee and the Fiscal Agent Master Servicer shall each be entitled to receive pay itself or the Trustee, as the case may be, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement, such interest to which a P&I Advance was made under this section has not elapsed as be payable, subject to the terms of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior Intercreditor Agreement with respect to the expiration related Loan Pair, first out 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; charges and provided, further, that, in no event shall interest so accrue Penalty Interest received 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose have been received by the Master Servicer, and in no event shall interest 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 prior to the related P&I Advance Date. (e) In no event shall the Trustee make a P&I Advance with respect to any Companion Loan. (f) Subject to Section 4.03(b) and Section 4.03(c), the Master Servicer shall make P&I Advances in respect of the Hyatt Center Pari Passu Companion Loan only during such time as the Hyatt Center Companion Loan is included in a securitization or a collateralized debt obligation in which interests therein are deposited issued or created pursuant to the terms of the related Intercreditor Agreement. With respect to any P&I Advance made on the Hyatt Center Pari Passu Companion Loan, the Master Servicer shall be entitled to recovery of such amounts from the holder thereof. For the avoidance of doubt, the Trust Fund shall not be liable for any recoveries of P&I Advances made by the Master Servicer on the Hyatt Center Pari Passu Companion Loan. Notwithstanding anything to the contrary contained herein, the Trustee shall have no obligation hereunder to, and shall not make P&I Advances in respect of, the Pool Custodial AccountHyatt Center Pari Passu Companion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C22)

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 Collection Account received after the end of the related Distribution Date in respect of the Mortgage Pool (other than the Split 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 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 Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master 183 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 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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704▇▇▇) 593▇▇▇-7682 ▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the 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 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 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 Master Servicer, the Trustee or the any Fiscal Agent, as the case may be, pursuant to the first paragraph of Section 4.03(a) Agent in respect of the Mortgage Pool 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 Periodic Payments, 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 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 Split Mortgage Loans or any successor REO Mortgage Loans with respect 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 DateCollection Period; provided that that, (i) 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 Periodic Payment, then the Master Servicer, the Trustee or any Fiscal Agent 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 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 Mortgage Loan (or that an Appraisal Reduction Amount exists with respect to the ShopKo Portfolio Loan Combination and a portion is allocable to the ShopKo Portfolio Mortgage Loan or any successor REO 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, the Master Servicer, the Trustee or the Fiscal Agent (if any) will be required in the event of subsequent delinquencies to advance in respect of the subject Mortgage Loan or REO Mortgage Loan, thenas the case may be, only an amount equal to the sum of (A) the amount of the interest portion of the P&I Advance that would otherwise be required without regard to this clause (y), minus 1/12th of the product of (1) 184 such Appraisal Reduction Amount (or, in the event case of subsequent delinquencies thereonthe ShopKo Portfolio Mortgage Loan or any successor REO Mortgage Loan with respect thereto, solely the amount portion of each P&I Advance, if any, required any Appraisal Reduction Amount with respect to be made in respect of the ShopKo Portfolio Loan Combination that is allocable to such Mortgage Loan or REO Mortgage Loan, as the case may be, during in accordance with, or as contemplated by, the period that 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 continues (or the applicable portion thereof) is allocated pursuant to existSection 4.04(e), shall be reduced weighted on the basis of the respective portions of such Appraisal Reduction Amount allocable to equal the product of such Classes, and (xB) the amount of the subject principal portion of the P&I Advance that would otherwise be required without regard to this proviso, multiplied by clause (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 hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 TrusteeFiscal Agent (if any), 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 Account 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 twelve (12) months preceding such determination, including an 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 3.18), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. IfIn 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 Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in connection its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the foregoingServicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, it 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 necessary for 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 Servicer (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 obtain an appraisalthe ShopKo Portfolio Mortgage Loan or any successor REO Mortgage Loan with respect thereto, the Master Servicer shall so notify make its determination that it has made a Nonrecoverable P&I Advance on such Mortgage Loan or any successor REO 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 Mortgage Loan or any successor REO 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 ShopKo Portfolio Non-Trust Loans. If the Master Servicer determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to the ShopKo Portfolio Mortgage Loan or any successor REO Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to such Mortgage Loan or any successor REO Mortgage Loan with respect thereto previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer will be required to provide the servicer of each securitization that holds the promissory note for a ShopKo Portfolio Non-Trust Loan written notice of such determination within one (1) Business Day of the date of such determination. On the fourth Business Day before each Distribution Date, the Special Servicer and consult with shall report to the Master Servicer the Special Servicer regarding Servicer's determination as to whether each P&I Advance made with respect to any previous Distribution Date or required to be made with respect to such appraisalDistribution Date with respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan is a Nonrecoverable P&I Advance. The Master Servicer, the Trustee and the Fiscal Agent (if any) shall rely, conclusively, on such determination that a P&I Advance is or would be a Nonrecoverable P&I Advance, and may rely conclusively on such a determination that a P&I Advance is not or would not be a Nonrecoverable P&I Advance. The Trustee and the Fiscal Agent (if any) shall be entitled to rely, conclusively, on any determination by the Master Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I AdvanceAdvance (and the Trustee or the Fiscal Agent (if any), as applicable, shall rely on the Master Servicer's determination that the P&I Advance would be a Nonrecoverable P&I Advance if the Trustee or the Fiscal Agent (if any), as applicable, 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 that such P&I Advance would be Nonrecoverable P&I Advance, the Trustee or the Fiscal Agent (if any) shall make such Advance within the time periods required by Section 4.03(a) unless the Trustee or the Fiscal AgentAgent (if any), as applicable, 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. Upon In determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance, the Special Servicer Trustee shall report be subject to the standards set forth in Section 8.01(a) hereunder and the Fiscal Agent (if any) shall use its reasonable good faith judgment. (d) In connection with the recovery by the Master Servicer Servicer, the Special Servicer's determination. The Trustee or any Fiscal Agent of any P&I Advance out of the Collection Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely on such determination. (d) The Master Servicerpay itself, the Trustee and or such Fiscal Agent, as the Fiscal Agent shall each be entitled to receive case may be, out of any amounts then on deposit in the Collection Account, 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) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement such interest to be payable, first out of late payment charges and Penalty Interest on deposit in the Collection Account that were received on the related Mortgage Loan or REO Property during the Collection Period in which a such reimbursement is made, and then from general collections on the Mortgage Pool then on deposit in the Collection Account; provided, however, that if such 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 with respect 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Combination Mortgage Loan or any successor REO Mortgage Loan as to which the P&I Advance relates (provided that with respect thereto, then such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, shall first be payable out of general collections on the Mortgage Loans and REO Properties amounts on deposit in the Pool related Loan Combination Custodial Account. The Master Servicer shall, Account in accordance with with, and if available pursuant to, Section 3.05(e). Subject to the fourth paragraph of Section 3.05(a), the Master Servicer shall reimburse itself, the Trustee or the Fiscal AgentAgent (if any), as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited have been received by the Master Servicer, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the Pool Custodial Accountcorresponding payment of principal and interest or Late Collection was received by the Master Servicer on or prior to the related P&I Advance Date. (e) In no event shall the Master Servicer, the Trustee or any Fiscal Agent make a P&I Advance with respect to any Non-Trust Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C4)

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 Split 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. (704) 593-7740 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇704) ▇▇▇593-▇▇▇▇ 7867 (or such alternative number provided by the Master Servicer b▇ ▇▇▇ ▇▇▇▇▇▇ ▇ervicer 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 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, 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 Split 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 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 it a P&I Advance has made become a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 an 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 3.183.19), 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 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. Upon If the Special Servicer determines that a determination P&I Advance would be a Nonrecoverable Advance or that any a P&I Advance previously made with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable P&I Advance, the Special Servicer shall report its determination to the Master Servicer and the Special Servicer's determination. The Master Servicer shall be entitled to conclusively rely on such determination. 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 Trustee and the Fiscal Tr▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇scal 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 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, 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 Section shall be payable: (i) first, payable in accordance with Sections the terms of Section 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account. The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the Pool Custodial Account.3.05A.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp. Commercial Mortgage Pass-Through Certificates Series 2004-Gg1)

P&I Advances. (a) On or before No later than 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 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 Split 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 ’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 ’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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704▇▇▇) 593▇▇▇-7682 ▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the 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 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 Scheduled Payments, 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 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 Split 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 in each case 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 last day of related Determination DateCollection Period; provided 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 ’s Certificate delivered to the Trustee, 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 an 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 3.18), 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 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 appraisalServicer. 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 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. Upon The Trustee, in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, the Special Servicer if made, would be, a Nonrecoverable Advance shall report be subject to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to conclusively rely on make such determination. (d) The In connection with the recovery by the Master ServicerServicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Trustee and the Fiscal Agent Master Servicer shall each be entitled to receive pay itself or the Trustee, as the case may be, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement, such interest to which a P&I Advance was made under this section has not elapsed as of the time such P&I Advance was madebe payable, then the total interest so accrued on such P&I Advance prior subject 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 terms of the related Master Servicer Remittance Date. Interest so accrued on any P&I Advance made under this section shall be payable: (i) firstIntercreditor Agreement with respect to the related Loan Pair, in accordance with Sections 3.05 and 3.26, first out of any Default Charges collected late payment charges and Penalty Interest received on or in respect of the related Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited have been received by the Master Servicer, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the Pool Custodial Accountcorresponding payment of principal and interest or Late Collection was received by the Master Servicer on or prior to the related P&I Advance Date. (e) In no event shall the Master Servicer or the Trustee make a P&I Advance with respect to any Companion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)

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 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 Split 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 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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the 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 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 P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02 shall apply. Neither the Master Servicer Remittance Date. If nor the Trustee shall advance any amount due to be paid by the Swap Counterparty for distribution to the Class A-2F Certificates in the event that the Swap Counterparty 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 hereundera required payment. (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 Periodic Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, 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 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 Split 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 provided, 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 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 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 provisoclause (ii), multiplied by minus the product of (y1) 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 (ii). (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 the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. IfOn the fourth Business Day before each Distribution Date, 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 the Special Servicer and consult with the Special Servicer regarding be entitled to conclusively rely on such appraisaldetermination. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon The Trustee in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be subject to the Special Servicer shall report standards applicable to the Master Servicer hereunder. A copy of any Officers' Certificate prepared in accordance with this Section (together with any appraisals affixed thereto) shall be delivered to the Special Servicer's determination. The Controlling Class Representative upon request (or, absent request, any such Officers' Certificates shall be delivered to the Controlling Class Representative on no less than a quarterly basis). (d) In connection with the recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely pay itself or the Trustee, as the case may be, out of any amounts then on such determination. (d) The Master Servicerdeposit in the Certificate Account, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made to but not including the date of reimbursement such interest to be payable (i) out of late payment charges and Penalty Interest collected on or in respect of the related Mortgage Loan and REO Loan during the same Collection Period in which such P&I Advance is outstanding; provided thatreimbursed (the use of such late payment charges and Penalty Interest to be allocated between the Master Servicer and the Special Servicer on a pro rata basis based on the amount of late payment charges and Penalty Interest that the Master Servicer and the Special Servicer have received as additional servicing compensation during such period), if and (ii) to the grace period for extent that the delinquent Monthly Payment as to which a P&I Advance was made under this section has not elapsed as of late payment charges and Penalty Interest described in the time immediately preceding clause (i) are insufficient, but only after such P&I Advance was madehas been reimbursed, then out of general collections on the total Mortgage Loans and any REO Properties on deposit in the Certificate Account; provided, however, that no interest so accrued shall accrue on such any P&I Advance prior made with respect to a Mortgage Loan unless the expiration of related Periodic Payment is received after any applicable grace period has expired. The Master Servicer shall reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby as soon as practicable after funds available for such grace periodpurpose have been received by the Master Servicer, 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 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 shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account. The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the Pool Custodial AccountDate.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Union Com Mor Sec Inc Com Mor Pass THR Cer Ser 2001-C1)

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 Split 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. (704) 593-7740 [_________] (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 [_________] or (▇▇▇) ▇▇▇-▇▇▇▇ [_________] (or such alternative number provided by the 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 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 Scheduled Payments, 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 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 Split 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, 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 last day of related Determination DateCollection Period; 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 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 appraisalServicer. 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. Upon The Trustee, in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, the Special Servicer if made, would be, a Nonrecoverable Advance shall report be subject to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to conclusively rely on make such determination. (d) The In connection with the recovery by the Master ServicerServicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Trustee and the Fiscal Agent Master Servicer shall each be entitled to receive pay itself or the Trustee, as the case may be, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement, such interest to which a P&I Advance was made under this section has not elapsed as be payable, subject to the terms of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior Intercreditor Agreement with respect to the expiration related Loan Pair, first out 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; charges and provided, further, that, in no event shall interest so accrue Penalty Interest received 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose have been received by the Master Servicer, and in no event shall interest 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 prior to the related P&I Advance Date. (e) In no event shall the Trustee make a P&I Advance with respect to any Companion Loan. (f) Subject to Section 4.03(b) and Section 4.03(c), the Master Servicer shall make P&I Advances in respect of the [_______________________] Companion Loan only during such time the [____________________________] Companion Loan is included in a securitization or a collateralized debt obligation in which interests therein are deposited issued or created pursuant to the terms of the [________________] Intercreditor Agreement. With respect to any P&I Advance made on the [______________________] Companion Loan, the Master Servicer shall be entitled to recovery of such amounts from the holder thereof. For the avoidance of doubt, the Trust Fund shall not be liable for any recoveries of P&I Advances made by the Master Servicer on the [_______________________] Companion Loan. Notwithstanding anything to the contrary contained herein, the Trustee shall have no obligation hereunder to, and shall not make P&I Advances in respect of, the Pool Custodial Account[______________________] Companion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)

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 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 Split 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 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 and the Paying Agent the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee Paying Agent shall provide notice of such failure to a Servicing Officer of the Master Servicer and the Trustee by facsimile transmission sent to telecopy no. (704) 593-7740 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇, respectively, (or such alternative number numbers provided by the Master Servicer and the Trustee to the Paying Agent in writing) and by telephone at telephone (704) 5▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇, respectively, (or such alternative numbers provided by the Master Servicer and the Trustee to the Paying Agent 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 Paying Agent 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 Paying Agent shall notify the Trustee (or and the Fiscal Agent Trustee 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 Periodic Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, 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 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 Split 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 provided, 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 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 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. The determination by the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 an 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 3.18), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. IfOn the fourth Business Day before each Distribution Date, 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 the Special Servicer and consult with the Special Servicer regarding be entitled to conclusively rely on such appraisaldetermination. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon The Trustee in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, if made, would be, a Nonrecoverable Advance shall be subject to the Special Servicer shall report standards applicable to the Master Servicer hereunder. (d) In connection with the Special Servicer's determination. The recovery by the Master Servicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall be entitled to conclusively rely pay itself or the Trustee, as the case may be, out of any amounts then on such determination. (d) The Master Servicerdeposit in the Certificate Account, the Trustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate (or, with respect to the AB Mortgage Loans and related Companion Loans, the rate provided in the CLF Intercreditor Agreement) 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) for so long as from the date made to but not including the date of reimbursement such interest to be payable, subject to the terms of a CLF 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 and then from general collections on the Mortgage Loans then on deposit in the Certificate Account; provided, however, that no interest shall accrue on any P&I Advance is outstanding; provided that, made with respect to a Mortgage Loan if the grace period for the delinquent Monthly related Periodic 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 is received prior to the due date of such Mortgage Loan or the expiration of such any applicable grace period. The Master Servicer shall reimburse itself or the Trustee, shall not exceed as applicable, for any outstanding P&I Advance made thereby as soon as practicable after funds available for such purpose have been received by the amount of Default ChargesMaster Servicer, 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 on or a Sub-Servicer on its behalf as of prior to the related P&I Advance Date. (e) In no event shall the Master Servicer Remittance Date. Interest so accrued on any or the Trustee make a P&I Advance made under this section shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of respect to any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account. The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the Pool Custodial AccountCompanion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (First Union National Bank Com Mort Pas THR Cert Ser 2002 C1)

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 Master Servicer shallshall either (i), subject to Section 4.03(c) below, satisfy remit from its obligations own funds to make any required the Paying Agent for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances Advances, if any, to be made in respect of the related Distribution Date, (ii) 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 Split 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 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 such required make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) 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. (704▇▇▇) 593▇▇▇-7740 ▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 p.m.10:00 a.m., New York City time, on such Master Servicer Remittance Datethe next Business Day. 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 Business Day immediately following such P&I Advance Date, then (i) 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 Date and (ii) the related Distribution Date, but 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, 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 shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly Scheduled Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, in each case net of related Master Servicing Fees Fees, Special Servicing Fees, Additional Servicing Fees, any Master Servicer Strip 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 Split 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 Master Servicing Fees, Master Servicer Strip, Special Servicing Fees, Additional Servicing Fees and any related Principal Recovery Fees) in the event of subsequent delinquencies thereon; (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 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; and (iii) provided further that, if the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan is extended by the Special Servicer in accordance with Section 3.20 and the Loan-to-Value Ratio for such Mortgage Loan at the time of such extension is in excess of 100%, then (unless the Class A-1 Certificates, the Class A-2 Certificates, and the Class A-3 Certificates are collectively the Controlling Class or REO such Mortgage Loan becomes a Required Appraisal Loan) the interest portion of any P&I Advance that would otherwise be made in respect of such Mortgage Loan during the extension period shall be reduced by an amount equal to the product of (i) such interest portion, as multiplied by (ii) a fraction, the case may benumerator of which is the excess, if any, of (A) the then aggregate Stated Principal Balance of the Mortgage Pool, over (B) the then aggregate of the Class Principal Balances of those Classes of Regular Certificates (other than the Class IO Certificates) with an earlier alphabetical Class designation than the Controlling Class, and the denominator of which is the then aggregate Stated Principal Balance of the Mortgage Pool. (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 the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 such determinationinformation, including an appraisal (appraisals; which appraisal shall have been be conducted by an Independent Appraiser within the 12-month period preceding such determination in accordance with the standards of the Appraisal Institute taking take into account the factors specified in Section 3.183.18(e), including without limitation, any environmental, engineering or other third party reports available, and other factors that a prudent real estate appraiser would consider (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 by an Independent Appraiser or other expert in real estate matters), 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 may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that support such determination by the Master Servicer. If, in . (d) 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 Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon a determination that recovery of any P&I Advance previously made with respect out of the Certificate Account pursuant to a Specially Serviced Loan or REO Loan is a Nonrecoverable P&I AdvanceSection 3.05(a), the Special Servicer shall report to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled to conclusively rely pay itself, out of any amounts then on such determination. (d) The Master Servicerdeposit in the Certificate Account, 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) 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through from the date that such Default Charges were received); and (ii) then, if and made to the extent that such Default Charges are insufficient to cover interest, but not before if including the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account. The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose are deposited in the Pool Custodial Account.date of

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

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 Split 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 ’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 ’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. (704) 593-7740 [_________] (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 [_________] or (▇▇▇) ▇▇▇-▇▇▇▇ [_________] (or such alternative number provided by the 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 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 Scheduled Payments, 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 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 Split 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, 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 last day of related Determination DateCollection Period; 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 ’s Certificate delivered to the Trustee, 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 an 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 3.18), 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 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 appraisalServicer. 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. Upon The Trustee, in determining whether or not a determination that any P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, the Special Servicer if made, would be, a Nonrecoverable Advance shall report be subject to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to conclusively rely on make such determination. (d) The In connection with the recovery by the Master ServicerServicer or the Trustee of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Trustee and the Fiscal Agent Master Servicer shall each be entitled to receive pay itself or the Trustee, as the case may be, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement, such interest to which a P&I Advance was made under this section has not elapsed as be payable, subject to the terms of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior Intercreditor Agreement with respect to the expiration related Loan Pair, first out 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; charges and provided, further, that, in no event shall interest so accrue Penalty Interest received 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose have been received by the Master Servicer, and in no event shall interest 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 prior to the related P&I Advance Date. (e) In no event shall the Trustee make a P&I Advance with respect to any Companion Loan. (f) Subject to Section 4.03(b) and Section 4.03(c), the Master Servicer shall make P&I Advances in respect of the [_______________________] Companion Loan only during such time the [____________________________] Companion Loan is included in a securitization or a collateralized debt obligation in which interests therein are deposited issued or created pursuant to the terms of the [________________] Intercreditor Agreement. With respect to any P&I Advance made on the [______________________] Companion Loan, the Master Servicer shall be entitled to recovery of such amounts from the holder thereof. For the avoidance of doubt, the Trust Fund shall not be liable for any recoveries of P&I Advances made by the Master Servicer on the [_______________________] Companion Loan. Notwithstanding anything to the contrary contained herein, the Trustee shall have no obligation hereunder to, and shall not make P&I Advances in respect of, the Pool Custodial Account[______________________] Companion Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)

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 each 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 Split 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 such required make P&I Advances, or (iii) make 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 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. (704) 593-7740 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or (▇▇▇) ▇▇▇-▇▇▇▇ (or such alternative number provided by the Master Servicer to the 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 6:00 p.m., New York City time, on such P&I Advance Date, then the Trustee shall (not later than 11:00 a.m., New York City time, on the related Distribution Date) make, then and if the Trustee (or the fails to do so, any Fiscal Agent shall (not later than 12:00 noon, New York City time, on its behalfthe related Distribution Date) shall make 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 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly 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 Split 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 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 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 the a Master Servicer (or, if applicable, the Trustee or any Fiscal Agent) that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 Fiscal Agent and applicable Special Servicer, to the Depositor Controlling Class Representative and, if made by a Master Servicer, to the Trustee (on or before the related Master Servicer Remittance DateP&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, together with any other information that supports such determination, including accompanied by a copy of an 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 3.18), 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 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. 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 appraisaldetermination. The Trustee and the any Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master 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 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. Upon a determination that any P&I Advance previously made with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable P&I Advance, the Special Servicer shall report to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. Each Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Mortgage Loans and REO Properties as such determinationparty required to make P&I Advances may reasonably request. (d) The Master ServicerServicers, the Trustee and the 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, shall not exceed the amount of Default Charges, if any, collected in connection ). Such interest with the late payment of such delinquent Monthly Payment; and provided, further, that, in no event shall interest so accrue on respect to 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges subsequently collected on or in respect of the particular Mortgage Loan or REO Mortgage Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received)relates; and (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related such Advance is being reimbursed or has been reimbursed pursuant to this AgreementInterest, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial applicable Master Servicer's Collection Account. The applicable Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee or the any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 with respect to any Mortgage Loan or REO Mortgage 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 accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the Pool Custodial Accountcorresponding Late Collection was received by or on behalf of the Trust as of the related P&I Advance Date. A Master Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent a payment is received but is being held by or on behalf of such Master Servicer in suspense.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 2001-Ckn5)

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 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 the Master Servicer in respect of the Mortgage Pool related Distribution Date, (other than the Split 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 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 the Master Servicer. Any amounts held in the Pool Custodial Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer's ’s records and replaced by the Master Servicer by deposit in the Pool Custodial 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 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 the Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (704) 593-7740 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 or facsimile number: [(▇▇▇) ▇▇▇-▇▇▇▇]) and by telephone (or such alternative number provided by the Master Servicer to the Trustee in writingat [(▇▇▇) ▇▇▇-▇▇▇▇]) 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 Master ServicerServicer (or by the Trustee, if the Trustee or the Fiscal Agent, as the case may be, pursuant 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, 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) and any REO Mortgage Loans in the Mortgage Pool (exclusive of the Split 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 the Master Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has 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 by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Borrower under the terms of the related 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 the Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 ’s Certificate delivered to the TrusteeDepositor, the Fiscal Agent and Special Servicer, the Depositor Certificate Administrator, the Subordinate Class Representative and, if made by the Master Servicer, the Trustee (on or before the related Master Servicer Remittance DateP&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, together with any other information that supports such determination, including accompanied by a copy of an 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 3.18), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties Property or REO Property performed within the nine (to the extent available and/or in the Master Servicer's or the Special Servicer's possession)9) 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 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 shall also be promptly delivered to the Master 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 Subordinate Class Representative, the Majority Subordinate Certificateholder, the Special Servicer and consult with the Special Servicer regarding such appraisal. The Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any determination by the Master Servicer that a P&I Advancefor the subject Mortgage Loan. Absent bad faith, if made, would be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has failed Servicer’s determination as to make a the recoverability of any P&I Advance for reasons other than a determination by shall be conclusive and binding on the Master Servicer that such P&I Advance would be Nonrecoverable P&I AdvanceCertificateholders and, in all cases, 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. Upon a determination that any P&I Advance previously made with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable P&I Advance, the Special Servicer shall report to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled to conclusively rely on any nonrecoverability determination made by the 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 Mortgage Loans and REO Properties as such determinationparty required to make P&I Advances may reasonably request. The 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 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 Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the 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. (d) The Master ServicerIn the case of each Mortgage Loan, the Trustee Master Servicer 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 Mortgage Loan that is a Past Grace Period Loan or an REO 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 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 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 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 of been Received by the time such P&I Advance was made, then the total Trust). Such interest so accrued on such P&I Advance prior with respect 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: (i) first, in accordance with Sections 3.05 and 3.263.25, out of any Default Charges subsequently collected on or in respect of the particular Mortgage Loan or REO Mortgage Loan as to which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received)relates; and (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related such Advance is being reimbursed or has been reimbursed pursuant to this AgreementInterest, out of general collections on the Mortgage Loans and REO Properties on deposit in the Pool Custodial Collection Account. The Master Servicer shall, in accordance with shall (subject to the operation of Section 3.05(a3.05(a)(II), ) reimburse itself, the Trustee itself or the Fiscal AgentTrustee, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 with respect to any Mortgage Loan or REO Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the Pool Custodial Collection Account, and in no event shall interest 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 Trust as of the related P&I Advance Date. (e) With regard to such P&I Advances, the Master Servicer or the Trustee shall account for that part of the P&I Advances which is attributable to Past Grace Period Loans, and that part of the P&I Advances which is attributable to Within Grace Period Loans. (f) Notwithstanding anything to the contrary, no P&I Advances shall be made with respect to any Junior Interest (whether or not it constitutes a Junior Interest or otherwise) or any successor REO Mortgage Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)

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 Split 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. (704) 593715-7740 0036 (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (704) 593-7682 7836 or (▇▇▇704) ▇▇▇593-▇▇▇▇ 7867 (or such alternative number provided by the Master Servicer to the Trustee ▇▇ ▇▇▇ ▇▇▇▇▇▇ Ser▇▇▇▇▇ ▇▇ ▇▇▇ ▇rustee 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 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 Fiscal Agent makes such P&I Advance on such date, then such failure of the Trustee shall be deemed not to be in default hereundercured. (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) and Section 4.03(e) below, equal the aggregate of all Monthly Periodic Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, in each case net of related Master Servicing Fees (and, in the case of the AmericasMart Loan, the 101 Avenue of the Americas Loan and any the U-Haul Portfolio Loan, servicing fees due to the 2005-C19 Master Servicer, the LB-UBS 2005-C3 Master Servicer or the MSCI 2005-HQ6 Master Servicer, as the case may be, to the extent not so otherwise paid pursuant to the related Workout Fees, 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 Split 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 2005-C19 Serviced Mortgage Loan, the LB-UBS 2005-C3 Serviced Mortgage Loan or the MSCI 2005-HQ6 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 2005-C19 Serviced Mortgage Loan, to the extent such amount was required to be advanced by the 2005-C19 Master Servicer pursuant to the 2005-C19 Pooling and Servicing Agreement, and the 2005-C19 Master Servicer failed to make such advance, the Master Servicer shall be required to make such P&I Advance only to the extent that 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, the Trustee or the Fiscal Agent 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, 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 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. The determination by the Master Servicer or the Special Servicer that it the Master Servicer has made a Nonrecoverable P&I Advance pursuant to this Section 4.03 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 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 (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 an 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 3.18), 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 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 appraisalServicer. 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 the Fiscal Agent 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. Upon ; provided, further, however, if the Trustee fails to make such Servicing Advance for reasons other than a determination by the Trustee that such Servicing Advance would be a Nonrecoverable Advance, the Fiscal Agent shall make such Servicing Advance within the time periods required by Section 4.03(a) unless the Fiscal Agent in good faith, makes a determination that any such P&I Advance would be a Nonrecoverable Advance. The Trustee, in determining whether or not a P&I Advance previously made with respect to is, or a Specially Serviced Loan or REO Loan is a Nonrecoverable proposed P&I Advance, the Special Servicer if made, would be, a Nonrecoverable Advance shall report be subject to the Master Servicer the Special Servicer's determination. The Master Servicer shall be entitled standards set forth in Section 8.01(a) hereunder, including utilizing its good faith business judgment to conclusively rely on make such determination. (d) The In connection with the recovery by the Master Servicer, the Trustee and or the Fiscal Agent of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a), subject to the next sentence, the Master Servicer shall each be entitled to receive pay itself, the Trustee or the Fiscal Agent, as the case may be, 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 such P&I Advance (to the extent made thereby under this Section 4.03 (with its own funds) for so long as from the date made (provided, however, no such P&I Advance is outstanding; provided that, if the interest shall accrue during any grace period for under a Mortgage Loan) to but not including the delinquent Monthly Payment as date of reimbursement such interest to which a P&I Advance was made under this section has not elapsed as be payable, subject to the terms of the time such P&I Advance was made, then the total interest so accrued on such P&I Advance prior Intercreditor Agreement with respect to the expiration related Loan Pair, first out 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; charges and provided, further, that, in no event shall interest so accrue Penalty Interest received 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: (i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges collected on or in respect of the Mortgage Loan or REO Loan as to Property during the Collection Period in which the P&I Advance relates (provided that such Default Charges will only be applied to pay interest on such P&I Advance through the date that such Default Charges were received); reimbursement is made and (ii) then, if and to the extent that such Default Charges are insufficient to cover interest, but not before if the related Advance is being reimbursed or has been reimbursed pursuant to this Agreement, out of then from general collections on the Mortgage Loans and REO Properties then on deposit in the Pool Custodial Certificate Account. The Master Servicer shall, in accordance with Section 3.05(a), shall reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby under this Section 4.03 as soon as practicable after funds available for such purpose have been received by the Master Servicer, and in no event shall interest 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 prior to the related P&I Advance Date. (e) In no event shall the Master Servicer make a P&I Advance with respect to any Companion Loan other than as contemplated by Section 4.03(f). In no event shall the Trustee or the Fiscal Agent make a P&I Advance with respect to any Companion Loan. (f) Subject to Section 4.03(b) and Section 4.03(c), the Master Servicer shall make P&I Advances in respect of the 1000 & 1100 Wilson Companion Loan only during such time as the related Companion ▇▇▇▇ ▇s included in a securitization or a collateralized debt obligation in which interests therein are deposited issued or created pursuant to the terms of the related Intercreditor Agreement. With respect to any P&I Advance made on the 1000 & 1100 Wilson Companion Loan, the Master Servicer shall be entitled to recov▇▇▇ ▇▇ such amounts from the holder thereof. For the avoidance of doubt, the Trust Fund shall not be liable for any recoveries of P&I Advances made by the Master Servicer on the related Companion Loan. Notwithstanding anything to the contrary contained herein, neither the Trustee nor the Fiscal Agent shall have any obligation hereunder to and shall not make P&I Advances in respect of the 1000 & 1100 Wilson Companion Loan. (g) None of the Master Servicer, ▇▇▇ ▇▇ying Agent, the Trustee or the Fiscal Agent shall advance any amount due to be paid by the Class A-3SF Swap Counterparty or the Class A-MFL Swap Counterparty for distribution to the Class A-3SF Certificates or the Class A-MFL Certificates, respectively. (h) With respect to the U-Haul Portfolio Whole Loan, if (1) the MSCI 2005-HQ6 Master Servicer has determined that a proposed P&I Advance (as defined in the MSCI 2005-HQ6 Pooling and Servicing Agreement) with respect to the U-Haul Portfolio Pari Passu Loan, if made, or any outstanding P&I Advance previously made, would be, or is, as applicable, a "nonrecoverable advance," and the MSCI 2005-HQ6 Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or Special Servicer has determined that a P&I Advance with respect to the U-Haul Portfolio Loan would be or is a Nonrecoverable P&I Advance, then none of the Master Servicer, the Trustee or the Fiscal Agent shall make any additional P&I Advance with respect to the U-Haul Portfolio Loan until the Master Servicer has consulted with the MSCI 2005-HQ6 Master Servicer and they agree that the circumstances with respect to the U-Haul Portfolio Loan have changed such that a proposed future P&I Advance would not be a "nonrecoverable advance." With respect to the U-Haul Portfolio Loan, if the Master Servicer or Special Servicer has determined that a proposed P&I Advance with respect to such loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the MSCI 2005-HQ6 Master Servicer written notice of such determination within two Business Days after such determination was made (or in the case of a determination by the Special Servicer, within two days of the Special Servicer notifying the Master Servicer of such determination). If the Master Servicer has received notice that the MSCI 2005-HQ6 Master Servicer is no longer approved by Moody's or Fitch or is no longer listed on S&P's Select Servicer List ▇▇ ▇ ▇.S. Commercial Mortgage Master Servicer, then the Master Servicer shall not be required to abide by any determination of nonrecoverability by the MSCI 2005-HQ6 Master Servicer. (i) With respect to the NGP Rubicon GSA Pool Custodial AccountLoan, the Master Servicer will be required to make its determination that it has made a Nonrecoverable P&I Advance with respect to such Mortgage Loan independently of any determination made by the master servicer with respect to a commercial mortgage securitization holding the NGP Rubicon GSA Pool Pari Passu Companion Loan (although it is understood that the Master Servicer shall not be precluded from considering any information that it would normally consider in making any nonrecoverability determination). If the Master Servicer determines that a proposed P&I Advance with respect to the NGP Rubicon GSA Pool Loan if made, or any outstanding P&I Advance with respect to the NGP Rubicon GSA Pool Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer will be required to promptly provide such master servicer with respect to the NGP Rubicon GSA Pool Pari Passu Companion Loan written notice of such determination. (j) With respect to the 101 Avenue of the Americas Loan, if the Master Servicer determines that a proposed P&I Advance with respect to th

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C20)