P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Certificate Administrator for deposit 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 held in such Master Servicer’s Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such Master Servicer’s records and replaced by such Master Servicer by deposit in its Collection Account prior to the next succeeding 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 3:30 p.m. (New York City time) on any P&I Advance Date, either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the Officer’s Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance 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 Certificate Administrator shall provide notice of such failure to such Master Servicer by facsimile transmission as soon as possible, but in any event before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 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) 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 such Master Servicer with respect to the related Distribution Date. (b) The aggregate amount of P&I Advances to be made by each Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of any Distribution Date, 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, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Non-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans with respect thereto on their respective Due Dates occurring in the month in which such Distribution Date occurs, in each case to the extent such amount was not Received by the Trust as of the close of business on the related Determination Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Required Appraisal Loan for the 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 (i) the amount of the 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 (ii) a fraction, expressed as a percentage, the numerator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, and the denominator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a 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) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, accompanied by a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers’ reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s Certificate (and accompanying information) of the Trustee or any Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer for the subject Mortgage Loan. Absent bad faith, a Master Servicer’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer’s Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s Certificate to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “Nonrecoverable P&I Advance” herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “Nonrecoverable Advance”. If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such other pooling and servicing agreement. In connection with the Beacon Seattle & DC Portfolio Pooled Mortgage Loan, any determination by the applicable Master Servicer for the Beacon Seattle & DC Portfolio Loan Group that any P&I Advance made or to be made with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently from any determinations (or the absence of any determinations) made by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pooled Mortgage Loan, after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, and in connection with the Beaver Brook Apartments Pooled Mortgage Loan, if (x) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a Nonrec
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr16)
P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Certificate Administrator for deposit 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 held in such Master Servicer’s 's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s 's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such Master Servicer’s 's records and replaced by such Master Servicer by deposit in its Collection Account prior to the next succeeding 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 3:30 p.m. (New York City time) on any P&I Advance Date, either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the Officer’s 's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance 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 Certificate Administrator shall provide notice of such failure to such Master Servicer by facsimile transmission as soon as possible, but in any event before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 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) 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 such Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of any Distribution Date, 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, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Non-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans with respect thereto on their respective Due Dates occurring in the month in which such Distribution Date occurs, in each case to the extent such amount was not Received by the Trust as of the close of business on the related Determination Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Required Appraisal Loan for the 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 (i) the amount of the 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 (ii) a fraction, expressed as a percentage, the numerator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, and the denominator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a 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) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, accompanied by a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers’ reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s Certificate (and accompanying information) of the Trustee or any Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer for the subject Mortgage Loan. Absent bad faith, a Master Servicer’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer’s Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s Certificate to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “Nonrecoverable P&I Advance” herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “Nonrecoverable Advance”. If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such other pooling and servicing agreement. In connection with the Beacon Seattle & DC Portfolio Pooled Mortgage Loan, any determination by the applicable Master Servicer for the Beacon Seattle & DC Portfolio Loan Group that any P&I Advance made or to be made with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently from any determinations (or the absence of any determinations) made by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pooled Mortgage Loan, after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, and in connection with the Beaver Brook Apartments Pooled Mortgage Loan, if (x) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a Nonrec
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Certificate Administrator for deposit 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 held in such Master Servicer’s 's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s 's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such Master Servicer’s 's records and replaced by such Master Servicer by deposit in its Collection Account prior to the next succeeding 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 3:30 p.m. (New York City time) on any P&I Advance Date, either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the Officer’s 's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance 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 Certificate Administrator shall provide notice of such failure to such Master Servicer by facsimile transmission as soon as possible, but in any event before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by such Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of any Distribution Date, 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, in the case of a the Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any comparable master servicing fees under the related Non-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans with respect thereto on their respective Due Dates occurring in the month in which such Distribution Date occurs, in each case to the extent such amount was not Received by the Trust as of the close of business on the related Determination Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Required Appraisal Loan for the 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 (i) the amount of the 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 (ii) a fraction, expressed as a percentage, the numerator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, and the denominator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) 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) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “"as is” " or then current conditions and occupancies, as modified by such party’s 's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s 's Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, accompanied by a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers’ ' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s 's Certificate (and accompanying information) of the Trustee or any the Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer for the subject Mortgage Loan. Absent bad faith, a Master Servicer’s 's determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer’s 's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s 's Certificate to such effect to the Trustee, the Certificate AdministratorFiscal Agent, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “"Nonrecoverable P&I Advance” " herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate AdministratorFiscal Agent, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each holder of the each Non-Pooled Pari Passu Companion Noteholders Loan (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “"Nonrecoverable Advance”". If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such the other pooling and servicing agreement. In connection with .
(d) The Master Servicers, the Beacon Seattle & DC Portfolio Pooled Mortgage LoanTrustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, any determination by accrued on the applicable Master Servicer for the Beacon Seattle & DC Portfolio Loan Group that any amount of each P&I Advance made thereby (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to be accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so -199- long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been Received by the Trust). Such interest with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently from payable: (i) first, in accordance with Sections 3.05 and 3.28, out of any determinations Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I Advance 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 such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the absence of Fiscal Agent, as applicable, for any determinations) outstanding P&I Advance made by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection thereby with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ respect to any Pooled Mortgage Loan, Loan or REO Pooled Mortgage Loan as soon as practicable after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included funds available for such purpose are deposited in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issuedsuch Master Servicer's Collection Account, and in connection no event shall interest accrue in accordance with the Beaver Brook Apartments Pooled Mortgage Loan, if (xthis Section 4.03(d) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant on any P&I Advance as to which rated securities have been the corresponding Late Collection was received by or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) on behalf of the second preceding paragraph Trust as of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant P&I Advance Date.
(e) With regard to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a NonrecAd
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)
P&I Advances. (a) On or before 1:00 p.m. (1:30 p.m., New York City time) , on each P&I Advance Date, each Master Servicer shall, shall (i) apply amounts in its Collection Account received after the end of the related Collection Period or otherwise held for future distribution to Certificateholders in subsequent months in discharge of its obligation to make P&I Advances or (ii) subject to Section 4.03(c)) below, either (i) remit from its own funds to the Certificate Administrator Trustee for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such the subject Master Servicer in respect of the related Distribution Date, (ii) apply amounts held in such . Each Master Servicer’s Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to Servicer may also make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made by such the subject Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s a Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such the applicable Master Servicer’s 's records and replaced by such the applicable Master Servicer by deposit in its such Collection Account prior to on or before the next succeeding Master Servicer Remittance 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 3:30 p.m. (3:00 p.m., New York City time) , on any P&I Advance Date, either a Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer’s 's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) 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 Certificate Administrator Trustee shall provide notice of such failure to a Servicing Officer of such Master Servicer by facsimile transmission sent to (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 2 (or such alternative number provided by any Master Servicer to the Trustee in writing) and by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, the case of Master Servicer No. 2 (or such alternative number provided by any Master Servicer to the Trustee in writing) as soon as possible, but in any event before 4:30 p.m. (4:00 p.m., New York City time) , on such P&I Advance Date. If after such notice the Certificate Administrator Trustee does not receive the full amount of such P&I Advances by 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 noona.m., New York City time, on the related Distribution Date, then, subject to Section 4.03(c), (i) the Trustee (or a Fiscal Agent on its behalf) 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 or remitted, as by the case may be, by such defaulting Master Servicer with respect on such 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 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 each Master Servicer (or or, if necessary, by the Trustee or any Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of for any Distribution DateDate shall, subject to Section 4.03(c) below, shall 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 any related Master Servicing Fees (and, in the case of a Non-Trust-the Outside Serviced Pooled Trust Mortgage Loan Loans or any successor REO Pooled Trust Mortgage Loan that is a successor Loans with respect thereto, further net of any comparable master servicing related fees under similar to Master Servicing Fees payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Non-Trust Outside Servicing AgreementAgreements), due or deemed due, as the case may be, in respect of the Pooled Trust Mortgage Loans (including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which such the subject Master Servicer is the applicable Master Servicer acting in such capacity and any successor REO Trust Mortgage Loans with respect thereto on their respective Due Dates occurring during the related Collection Period (or, in the case of a Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which such the subject Distribution Date occurs, in each case ) to the extent such amount was not Received paid by or on behalf of the Trust related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination Collection Period (or, in the case of any Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loan with respect thereto, actually received by the Trustee or the applicable Master Servicer as of 1:00 p.m., New York City time, on the related P&I Advance Date); provided that, (i) if the Periodic Payment on any Trust Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), or if the final maturity on any Trust Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Trust Mortgage Loan, then as the interest portion case may be, the applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of any P&I Advance required subsequent delinquencies to be made advance in respect of such Required Appraisal the subject Trust Mortgage Loan for or REO Trust Mortgage Loan, as the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in case may be, only an amount equal to the principal portion of such P&I Advance) to equal the product sum of (iA) the amount of the interest portion of such the P&I Advance that would otherwise be required without regard to be made this clause (ii), minus 1/12th of the product of (1) such Appraisal Reduction Amount (or, in the case of a Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto that is part of a Loan Combination, solely the portion of any Appraisal Reduction Amount with respect to such Required Loan Combination that is allocable to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, in accordance with, or as contemplated by, the definition of "Appraisal Loan Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for such Distribution Date applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (or the applicable portion thereof) is allocated pursuant to Section 4.04(d), weighted on the basis of the respective portions of such Appraisal Reduction Amount allocable to such Classes of Principal Balance Certificates, and (B) the amount of the principal portion of the P&I Advance that would otherwise be required without regard to this provisoclause (y). For the avoidance of doubt and subject to Section 4.03(c), multiplied by Master Servicer No. 1 (ii) a fraction, expressed as a percentagewith respect to the Seattle Needle Space Trust Mortgage Loan, the numerator of which shall equal CGM RRI Hotel Portfolio Trust Mortgage Loan, the Stated Principal Balance of such Required Appraisal Lincoln Square Trust Mortgage Loan immediately prior and any successor REO Trust Mortgage Loans with respect thereto) and Master Servicer No. 2 (with respect to such Distribution Datethe One Liberty Plaza Trust Mortgage Loan, net of the related Appraisal Reduction AmountScottsdale Fashion Square Trust Mortgage Loan, the ▇▇▇▇ Terminal Trust Mortgage Loan and any successor REO Trust Mortgage Loans with respect thereto), and the denominator Trustee and any Fiscal Agent, as applicable, with respect to the Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto, shall each be required to make P&I Advances (and shall obtain recovery with respect thereto) in the same way that such party is required to make and recover P&I Advances with respect to any other Trust Mortgage Loan or REO Trust Mortgage Loan in the Mortgage Pool. If Master Servicer No. 1 or Master Servicer No. 2 (as the case may be), the Trustee or any Fiscal Agent makes a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify the relevant Outside Master Servicer of which each such P&I Advance so made thereby and shall equal the Stated Principal Balance seek reimbursement for such P&I Advance (together with interest thereon) out of such Required Appraisal Loan immediately prior amounts otherwise payable with respect to such Distribution DateOutside Serviced Loan Combination that includes such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by, and out of amounts specified for such purpose under, the related Co-Lender Agreement and/or the relevant Outside Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a 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 the determination by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in that the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trusteehas made) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s 's Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative and, Fiscal Agent (if made by a Master Servicerany), the Trustee (and the Depositor on or before the related P&I Advance Date in the case of a proposed P&I Advance)Date, setting forth the basis for such determination, accompanied by together with any other information, including Appraisals (the cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e)) (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiserdetermination), related Mortgagor operating statements and further accompanied by any other informationfinancial statements, including budgets and rent rolls of the related Mortgaged Properties, engineers’ ' reports, environmental surveys and any similar reports that the subject Master Servicer or similar reportsthe Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that the Person making support such determination by the subject Master Servicer or the Special Servicer. In making a recoverability determination the applicable Person will be entitled, but not obligated, to consider (among other things) the obligations of the related Mortgagor under the terms of the related Trust Mortgage Loan as it may have obtained. A copy been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any such Officer’s Certificate outstanding Nonrecoverable Advances the reimbursement of which is being deferred pursuant to Section 3.05(a), together with (and accompanying information) of the Trustee or any Fiscal Agent shall also be promptly delivered to the Certificate Administratorextent accrued and unpaid) interest on such Advances. In addition, the Controlling Class Representativeany such Person may update or change its recoverability determinations at any time, the applicable Special Servicer and the Master Servicers (consistent with the Servicing Standard) and the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Special Servicer's possession for the subject Mortgage Loansuch purposes. Absent bad faith, a Master Servicer’s determination as With respect to the recoverability related Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, each of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I AdvanceNo. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans 1 and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer No. 2 shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures second succeeding sentence below) make its determination that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously it has made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee)Advance, if made, would constitute a Nonrecoverable P&I Advance, in which case Advance with respect to such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any Officer’s Certificate (and accompanying information) of determination made by the applicable Special Servicer in support of its determination shall be promptly delivered servicer with respect to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to holding the securitization effected by this Agreement and in which securities are issued that are rated by at least promissory note for one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to of the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Trust Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s Certificate to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “Nonrecoverable P&I Advance” herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “Nonrecoverable Advance”Loans. If the applicable Master Servicer receives determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, would be, or is, as applicable, a Nonrecoverable Advance, then the applicable Master Servicer will be required to provide the servicer of each securitization that holds the promissory note for a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, that a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled with respect to an Outside Serviced Trust Mortgage Loan included in a or any successor REO Trust Mortgage Loan Group as described abovewith respect thereto constitutes or may, such if made, constitute a Nonrecoverable P&I Advance, and (ii) either (A) the applicable Master Servicer shall promptly forward such notice and the accompanying information has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a response from the applicable Outside Servicer indicating that an appraisal with respect to the related comparable party under Mortgaged Property would be performed within 60 days of the date of such other pooling and servicing agreement. In connection response or has been performed within the prior 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Beacon Seattle & DC Portfolio Pooled Mortgage LoanServicing Standard, any determination is necessary) preceding the date of such request, and (y) within 60 days of the date of such response, a copy of an appraisal report with respect to the related Mortgaged Property, relating to an appraisal that has been performed within the 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of receipt by the applicable Master Servicer that complies with the requirements for such an appraisal under the Beacon Seattle & DC Portfolio Loan Group that any P&I Advance terms of the relevant Outside Servicing Agreement or this Agreement, or (B) the applicable Master Servicer has made or to be made a request for an appraisal with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently related Mortgaged Property from any determinations (or the absence of any determinations) made applicable Outside Servicer and has been advised by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pooled Mortgage Loan, after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, and in connection with the Beaver Brook Apartments Pooled Mortgage Loan, if (x) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Outside Servicer receives a written notice described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances such an appraisal with respect to the Non-Pooled Pari Passu Companion Loan under related Mortgaged Property will not be performed within the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan time periods specified in clause (or any successor REO mortgage loan with respect theretoii)(A) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a Nonrec
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)
P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Certificate Administrator for deposit 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 held in such Master Servicer’s 's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s 's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such Master Servicer’s 's records and replaced by such Master Servicer by deposit in its Collection Account prior to the next succeeding 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 3:30 p.m. (New York City time) on any P&I Advance Date, either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the Officer’s 's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance 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 Certificate Administrator shall provide notice of such failure to such Master Servicer by facsimile transmission as soon as possible, but in any event before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by such Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of any Distribution Date, 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, in the case of a the Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any comparable master servicing fees under the related Non-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans with respect thereto on their respective Due Dates occurring in the month in which such Distribution Date occurs, in each case to the extent such amount was not Received by the Trust as of the close of business on the related Determination Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Required Appraisal Loan for the 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 (i) the amount of the 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 (ii) a fraction, expressed as a percentage, the numerator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, and the denominator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) 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) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “"as is” " or then current conditions and occupancies, as modified by such party’s 's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s 's Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, accompanied by a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers’ ' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s 's Certificate (and accompanying information) of the Trustee or any the Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer for the subject Mortgage Loan. Absent bad faith, a Master Servicer’s 's determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The applicable Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer’s 's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing DateLoan, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a rated commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): Agreement, (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s 's Certificate to such effect to the Trustee, the Certificate AdministratorFiscal Agent, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “"Nonrecoverable P&I Advance” " herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate AdministratorFiscal Agent, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “"Nonrecoverable Advance”". If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such the other pooling and servicing agreement. In connection with .
(d) The Master Servicers, the Beacon Seattle & DC Portfolio Pooled Mortgage LoanTrustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, any determination by accrued on the applicable Master Servicer for the Beacon Seattle & DC Portfolio Loan Group that any amount of each P&I Advance made thereby (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to be accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been Received by the Trust). Such interest with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently from payable: (i) first, in accordance with Sections 3.05 and 3.28, out of any determinations Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I Advance 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 such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the absence of Fiscal Agent, as applicable, for any determinations) outstanding P&I Advance made by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection thereby with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ respect to any Pooled Mortgage Loan, Loan or REO Pooled Mortgage Loan as soon as practicable after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included funds available for such purpose are deposited in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issuedsuch Master Servicer's Collection Account, and in connection no event shall interest accrue in accordance with the Beaver Brook Apartments Pooled Mortgage Loan, if (xthis Section 4.03(d) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant on any P&I Advance as to which rated securities have been the corresponding Late Collection was received by or are subsequently issuedon behalf of the Trust as of the related P&I Advance Date.
(e) With regard to such P&I Advances, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) Servicer, the Trustee or the Fiscal Agent shall account for that part of the second preceding paragraph of this Section 4.03(c) P&I Advances which is attributable to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a NonrecPast Grace Period
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr4)
P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, each Master Servicer shallRemittance Date, subject to Section 4.03(c)the Master Servicer shall in the case of all Mortgage Loans, either (i) remit from its own funds to the Certificate Administrator for deposit into the Distribution Account from its own funds 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 held in such Master Servicer’s Collection the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicermade; provided, provided that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such Master Servicer’s records and replaced by such Master Servicer by deposit in its Collection Account prior to the next succeeding Master Servicer Remittance Date (to the extent not previously replaced through the deposit of if Late Collections of any of the delinquent principal and and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances were made)Advances. If, as of 3:30 p.m. (3:00 p.m., New York City time) , on any P&I Advance Master Servicer Remittance Date, either 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 Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) 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 Certificate Administrator Trustee shall provide notice of such failure to such a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. [_______________] (or such alternative number provided by the Master Servicer to the Trustee in writing) and by telephone at telephone no. [_______________] (or such alternative number provided by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 4:30 p.m. (4:00 p.m., New York City time) , on such P&I Advance Master Servicer Remittance Date. If If, after such notice notice, the Certificate Administrator Trustee does not receive the full amount of such P&I Advances by 9:00 a.m. the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the related Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such 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) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as by the case may be, by Master Servicer on such Master Servicer with respect to Remittance Date and (ii) such failure shall constitute a Servicer Termination Event on the related Distribution Datepart of the Master Servicer.
(b) The aggregate amount of P&I Advances to be made by each Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of the Mortgage Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Loans for any Distribution DateDate shall equal, subject to Section 4.03(csubsection (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 (andpayable hereunder, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto, any comparable master servicing fees under the related Non-Trust Servicing Agreement), were due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans with respect thereto thereof on their respective Due Dates occurring in during the month in which such Distribution Date occurs, in each case to related Collection Period and that were not paid by or on behalf of the extent such amount was not Received by the Trust related Mortgagors or otherwise collected as of the close of business on the related Determination [___] Business Day before the Master Servicer Remittance Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then then, in the event of subsequent delinquencies thereon, the interest portion of any the P&I Advance required to be made in respect of such Required Appraisal Loan for the 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 (i) the amount of the interest portion of such P&I Advance that would otherwise be required to be made in respect of for such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which shall is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which shall is equal to the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. The determination by a the Master Servicer (or, if applicable, or the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) Trustee that it has made constitutes a Nonrecoverable P&I Advance has been made 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) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative promptly (and, if made by a Master Servicerin any event, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I AdvanceAdvance by the Master Servicer, no less than [___] Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the 17g-5 Information Provider (and, subject to Section 3.15, the Rating Agencies), the Directing Certificateholder, setting forth the basis for such determination, accompanied by together with (such determination is prior to the liquidation of the related Mortgage Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property Property, as the case may be, which shall have been performed within the 12 months preceding such determination by a Qualified Appraiserdetermination, and further accompanied by any other information, including engineers’ reports, environmental surveys or similar reports, information that the Person making such determination Master Servicer or the Special Servicer may have obtainedobtained that supports such determination. A copy of any The Trustee shall deliver such Officer’s Certificate (as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and accompanying information) of the Trustee or any Fiscal Agent shall also be promptly delivered performed pursuant to the Certificate Administratorterms of this Agreement, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the subject Mortgage Loanexpense of the Trust out of general collections. Absent bad faith, a Master Servicer’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the The Trustee shall be entitled to conclusively rely on any determination of nonrecoverability determination that may have been made by a the Master Servicer with respect to a particular P&I Advance. The applicable Master Servicer and the Trustee shall rely on any determination of nonrecoverability that may have been made by the Special Servicer shall promptly furnish any party required with respect to make a particular P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. Advance.
(d) The applicable Master Servicer and the Trustee shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (subject out of its own funds), to the same standards and procedures extent that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior such P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes relates to a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee), if Past Grace Period Loan when made, would constitute or remains outstanding when such Mortgage Loan becomes a Nonrecoverable P&I AdvancePast Grace Period Loan, in which case such interest shall begin to accrue when such Mortgage Loan becomes a Past Grace Period Loan, for so long as such P&I Advance shall constitute a Nonrecoverable P&I is outstanding (or, in the case of Advance for all purposes of this Agreement. A copy of any Officer’s Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered Interest payable to the Master Servicer for Servicer, if earlier, until the subject Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage LoanLoans and any REO Properties on deposit in the Certificate Account. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s Certificate to such effect to reimburse itself or the Trustee, the Certificate Administratoras appropriate, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “Nonrecoverable P&I Advance” herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate 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 had been received as of the related date on which such P&I Advance was made.
(e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to be made with respect Past Grace Period Loans, and that part of the P&I Advances that is attributable to any Pooled Mortgage Loan Within Grace Period Loans.
(or any successor REO Mortgage Loan with respect theretof) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then [RESERVED].
(g) None of the Master Servicer or the Trustee shall notify in writing such comparable party of such determination (which notice shall advance any amount due to be accompanied paid by the supporting evidence Class A-FL Swap Counterparty for such determination as contemplated distribution to the Class A-FL Certificates. In addition, for the avoidance of doubt, if funds allocated to payment of interest distributions on the Class A-FL Regular Interest are insufficient to pay the Accrued Certificate Interest on the Class A-FL Regular Interest, the amount paid to the Class A-FL Swap Counterparty will be reduced and interest paid by the preceding paragraph); and (iv) following any determination described in Class A-FL Swap Counterparty under the preceding clause (iii)Class A-FL Swap Contract will be reduced, if such Master Servicer subsequently determines (other than on a dollar-for-dollar basis, by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) an amount equal to the extent that such clause relates difference between the amount actually paid to the related NonClass A-Pooled Pari Passu Companion Loans FL Swap Counterparty and the Trust or amount that would have been paid if the applicable Master Servicer is a third party beneficiary funds allocated to payment of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) interest distributions on the applicable Master Servicer under Class A-FL Regular Interest had been sufficient to pay the preceding clauses (iii) and (iv) and the definition of “Nonrecoverable Advance”. If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such other pooling and servicing agreement. In connection with the Beacon Seattle & DC Portfolio Pooled Mortgage Loan, any determination by the applicable Master Servicer for the Beacon Seattle & DC Portfolio Loan Group that any P&I Advance made or to be made with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently from any determinations (or the absence of any determinations) made by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances Accrued Certificate Interest on the Beacon Seattle & DC Portfolio NonClass A-Pooled Pari Passu Companion Loan. In connection with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pooled Mortgage Loan, after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, and in connection with the Beaver Brook Apartments Pooled Mortgage Loan, if (x) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a NonrecFL Regular Interest.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)
P&I Advances. (a) On or before 1:00 p.m. (1:30 p.m., New York City time) , on each P&I Advance Date, each Master Servicer shall, shall (i) apply amounts in its Collection Account received after the end of the related Collection Period or otherwise held for future distribution to Certificateholders in subsequent months in discharge of its obligation to make P&I Advances or (ii) subject to Section 4.03(c)) below, either (i) remit from its own funds to the Certificate Administrator for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by such the subject Master Servicer in respect of the related Distribution Date, (ii) apply amounts held in such . Each Master Servicer’s Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to Servicer may also make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of P&I Advances to be made by such the subject Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s a Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such the applicable Master Servicer’s 's records and replaced by such the applicable Master Servicer by deposit in its such Collection Account prior to on or before the next succeeding Master Servicer Remittance 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 3:30 p.m. (3:00 p.m., New York City time) , on any P&I Advance Date, either a Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the requisite Officer’s 's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) 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 Certificate Administrator Trustee shall provide notice of such failure to a Servicing Officer of such Master Servicer by facsimile transmission sent to (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 2, and (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 3 (or such alternative number provided by any Master Servicer to the Trustee in writing) and by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 2, and (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 3 (or such alternative number provided by any Master Servicer to the Trustee in writing) as soon as possible, but in any event before 4:30 p.m. (4:00 p.m., New York City time) , on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 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 noona.m., New York City time, on the related Distribution Date, then, subject to Section 4.03(c), (i) the Trustee (or a Fiscal Agent on its behalf) 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 or remitted, as by the case may be, by such defaulting Master Servicer with respect on such 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 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 each Master Servicer (or or, if necessary, by the Trustee or any Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of for any Distribution DateDate shall, subject to Section 4.03(c) below, shall 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 any related Master Servicing Fees (and, in the case of a Non-Trust-the Outside Serviced Pooled Trust Mortgage Loan Loans or any successor REO Pooled Trust Mortgage Loan that is a successor Loans with respect thereto, further net of any comparable master servicing related fees under similar to Master Servicing Fees payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Non-Trust Outside Servicing AgreementAgreements), due or deemed due, as the case may be, in respect of the Pooled Trust Mortgage Loans (including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which such the subject Master Servicer is the applicable Master Servicer acting in such capacity and any successor REO Trust Mortgage Loans with respect thereto on their respective Due Dates occurring during the related Collection Period (or, in the case of a Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which such the subject Distribution Date occurs, in each case ) to the extent such amount was not Received paid by or on behalf of the Trust related Mortgagor or otherwise collected (including as net income from REO Properties) as of the close of business on the last day of related Determination Collection Period (or, in the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, actually received by the Certificate Administrator or Master Servicer No. 1 as of 1:00 p.m., New York City time, on the related P&I Advance Date); provided that, (i) if the Periodic Payment on any Trust Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), or if the final maturity on any Trust Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of an Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the relevant Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Trust Mortgage Loan, then as the interest portion case may be, the applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of any P&I Advance required subsequent delinquencies to be made advance in respect of such Required Appraisal the subject Trust Mortgage Loan for or REO Trust Mortgage Loan, as the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in case may be, only an amount equal to the principal portion of such P&I Advance) to equal the product sum of (iA) the amount of the interest portion of such the P&I Advance that would otherwise be required without regard to be made this clause (ii), minus 1/12th of the product of (1) such Appraisal Reduction Amount (or, in the case of a Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto that is part of a Loan Combination, solely the portion of any Appraisal Reduction Amount with respect to such Required Loan Combination that is allocable to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, in accordance with, or as contemplated by, the definition of "Appraisal Loan Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for such Distribution Date applicable to the respective Classes of Principal Balance Certificates and Group FL REMIC II Regular Interests to which such Appraisal Reduction Amount (or the applicable portion thereof) is allocated pursuant to Section 4.04(d), weighted -251- on the basis of the respective portions of such Appraisal Reduction Amount allocable to such Classes of Principal Balance Certificates and such Group FL REMIC II Regular Interests, and (B) the amount of the principal portion of the P&I Advance that would otherwise be required without regard to this provisoclause (y). For the avoidance of doubt and subject to Section 4.03(c), multiplied by Master Servicer No. 1 (ii) a fractionwith respect to the Ala Moana Portfolio Trust Mortgage Loan and any successor REO Trust Mortgage Loans), expressed as a percentage, Master Servicer No. 2 (with respect to the numerator of which shall equal the Stated Principal Balance of such Required Appraisal AmeriCold Trust Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amountand any successor REO Trust Mortgage Loans), and the denominator Trustee and any Fiscal Agent, as applicable, with respect to the Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto, shall each be required to make P&I Advances (and shall obtain recovery with respect thereto) in the same way that such party is required to make and recover P&I Advances with respect to any other Trust Mortgage Loan or REO Trust Mortgage Loan in the Mortgage Pool. If Master Servicer No. 1 or Master Servicer No. 2 (as the case may be), the Trustee or any Fiscal Agent makes a P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, then it shall promptly so notify the relevant Outside Master Servicer of which each such P&I Advance so made thereby and shall equal the Stated Principal Balance seek reimbursement for such P&I Advance (together with interest thereon) out of such Required Appraisal Loan immediately prior amounts otherwise payable with respect to such Distribution DateOutside Serviced Loan Combination that includes such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by, and out of amounts specified for such purpose under, the related Co-Lender Agreement and/or the relevant Outside Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a 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 the determination by such Person in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to consider (among other things) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in that the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trusteehas made) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s 's Certificate delivered to the DepositorFiscal Agent (if any), the applicable Special ServicerTrustee, the Certificate Administrator, Administrator and the Controlling Class Representative and, if made by a Master Servicer, the Trustee (Depositor on or before the related P&I Advance Date in the case of a proposed P&I Advance)Date, setting forth the basis for such determination, accompanied by together with any other information, including Appraisals (the cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e)) (or, if no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiserdetermination), related Mortgagor operating statements and further accompanied by any other informationfinancial statements, including budgets and rent rolls of the related Mortgaged Properties, engineers’ ' reports, environmental surveys and any similar reports that the subject Master Servicer or similar reportsthe Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, that the Person making support such determination by the subject Master Servicer or the Special Servicer. In making a recoverability determination the applicable Person will be entitled, but not obligated, to consider (among other things) the obligations of the related Mortgagor under the terms of the related Trust Mortgage Loan as it may have obtained. A copy been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any such Officer’s Certificate outstanding Nonrecoverable Advances the reimbursement of which is being deferred pursuant to Section 3.05(a), together with (and accompanying information) of the Trustee or any Fiscal Agent shall also be promptly delivered to the Certificate Administratorextent accrued and unpaid) interest on such Advances. In addition, the Controlling Class Representativeany such Person may update or change its recoverability determinations at any time, the applicable Special Servicer and the Master Servicers (consistent with the Servicing Standard) and the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Special Servicer's possession for the subject Mortgage Loansuch purposes. Absent bad faith, a Master Servicer’s determination as With respect to the recoverability related Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, each of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I AdvanceNo. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans 1 and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer No. 2 shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures second succeeding sentence below) make its determination that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously it has made hereunder by the applicable Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee)Advance, if made, would constitute a Nonrecoverable P&I Advance, in which case Advance with respect to such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any Officer’s Certificate (and accompanying information) of determination made by the applicable Special Servicer in support of its determination shall be promptly delivered servicer with respect to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to holding the securitization effected by this Agreement and in which securities are issued that are rated by at least promissory note for one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to of the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Trust Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s Certificate to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “Nonrecoverable P&I Advance” herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate Administrator, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “Nonrecoverable Advance”Loans. If the applicable Master Servicer receives determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, would be, or is, as applicable, a Nonrecoverable Advance, then the applicable Master Servicer will be required to provide the servicer of each securitization that holds the promissory note for a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, that a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled with respect to an Outside Serviced Trust Mortgage Loan included in a or any successor REO Trust Mortgage Loan Group as described abovewith respect thereto constitutes or may, such if made, constitute a Nonrecoverable P&I Advance, and (ii) either (A) the applicable Master Servicer shall promptly forward such notice and the accompanying information has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a response from the applicable Outside Servicer indicating that an appraisal with respect to the related comparable party under Mortgaged Property would be performed within 60 days of the date of such other pooling and servicing agreement. In connection response or has been performed within the prior 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Beacon Seattle & DC Portfolio Pooled Mortgage LoanServicing Standard, any determination is necessary) preceding the date of such request, and (y) within 60 days of the date of such response, a copy of an appraisal report with respect to the related Mortgaged Property, relating to an appraisal that has been performed within the 12-month period (or such shorter period as the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, is necessary) preceding the date of receipt by the applicable Master Servicer that complies with the requirements for such an appraisal under the Beacon Seattle & DC Portfolio Loan Group that any P&I Advance terms of the relevant Outside Servicing Agreement or this Agreement, or (B) the applicable Master Servicer has made or to be made a request for an appraisal with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently related Mortgaged Property from any determinations (or the absence of any determinations) made applicable Outside Servicer and has been advised by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pooled Mortgage Loan, after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, and in connection with the Beaver Brook Apartments Pooled Mortgage Loan, if (x) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Outside Servicer receives a written notice described in clause (i) of the second preceding paragraph of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances such an appraisal with respect to the Non-Pooled Pari Passu Companion Loan under related Mortgaged Property will not be performed within the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a Nonrec
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2007-C6)
P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Certificate Administrator for deposit 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 held in such Master Servicer’s 's Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by such Master Servicer; provided, that the Master Servicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in either Master Servicer’s 's Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in such Master Servicer’s 's records and replaced by such Master Servicer by deposit in its Collection Account prior to the next succeeding 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 3:30 p.m. (New York City time) on any P&I Advance Date, either Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the Officer’s 's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance 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 Certificate Administrator shall provide notice of such failure to such Master Servicer by facsimile transmission as soon as possible, but in any event before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by such Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master Servicer fails to do so) in respect of any Distribution Date, 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, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any comparable master servicing fees under the related Non-Trust Servicing Agreement), due or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans with respect thereto on their respective Due Dates occurring in the month in which such Distribution Date occurs, in each case to the extent such amount was not Received by the Trust as of the close of business on the related Determination Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Required Appraisal Loan for the 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 (i) the amount of the 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 (ii) a fraction, expressed as a percentage, the numerator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, and the denominator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) 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) only the obligations of the Borrower under the terms of the related Pooled Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “"as is” " or then current conditions and occupancies, as modified by such party’s 's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s 's Certificate delivered to the Depositor, the applicable Special Servicer, the Certificate Administrator, the Controlling Class Representative and, if made by a Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis for such determination, accompanied by a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the 12 months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers’ ' reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s 's Certificate (and accompanying information) of the Trustee or any the Fiscal Agent shall also be promptly delivered to the Certificate Administrator, the Controlling Class Representative, the applicable Special Servicer and the Master Servicer for the subject Mortgage Loan. Absent bad faith, a Master Servicer’s 's determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be entitled to conclusively rely on any nonrecoverability determination made by a Master Servicer with respect to a particular P&I Advance. The applicable Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Pooled Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The applicable Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Pooled Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the applicable Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the applicable Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the TrusteeTrustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer’s 's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Pooled Pari Passu Companion Loan (but if a Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial mortgage securitization as of the Closing Date, then this provision shall apply only from and after the date on which the applicable Master Servicer has received notice to the effect that such Non-Pooled Pari Passu Companion Loan has been securitized as part of a commercial mortgage securitization similar to the securitization effected by this Agreement and in which securities are issued that are rated by at least one national statistical rating organization): (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related master servicer or other comparable party responsible for making debt service advances under the pooling and servicing agreement for such securitization has determined, pursuant to such agreement, that any debt service advance made or to be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer’s 's Certificate to such effect to the Trustee, the Certificate AdministratorFiscal Agent, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of “"Nonrecoverable P&I Advance” " herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Certificate AdministratorFiscal Agent, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph); and (iv) following any determination described in the preceding clause (iii), if such Master Servicer subsequently determines (other than by operation of clause (ii) above) that P&I Advances made or to be made with respect to such Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in writing such comparable party of such determination (which notice shall be accompanied by the supporting evidence for such determination as contemplated by the preceding paragraph). Each holder of the each Non-Pooled Pari Passu Companion Noteholders Loan (and its related master servicer or comparable party responsible for debt service advances) shall be a third party beneficiary of the preceding clauses (iii) and (iv) to the extent that such clause relates to the related Non-Pooled Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a third party beneficiary of a provision in the related Mortgage Loan Group Intercreditor Agreement or in the applicable pooling and servicing agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such comparable party duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Pooled Mortgage Loan) on the applicable Master Servicer under the preceding clauses (iii) and (iv) and the definition of “"Nonrecoverable Advance”". If the applicable Master Servicer receives notice of a nonrecoverability determination by another party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included in a Mortgage Loan Group as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related comparable party under such the other pooling and servicing agreement. In connection with .
(d) The Master Servicers, the Beacon Seattle & DC Portfolio Pooled Mortgage LoanTrustee and the Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, any determination by accrued on the applicable Master Servicer for the Beacon Seattle & DC Portfolio Loan Group that any amount of each P&I Advance made thereby (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such interest shall begin to be accrue from the related P&I Advance Date, or (ii) remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to a Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been Received by the Trust). Such interest with respect to the Beacon Seattle & DC Portfolio Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance shall be made independently from payable: (i) first, in accordance with Sections 3.05 and 3.29, out of any determinations Default Charges subsequently collected on the particular Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I Advance 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 such Advance Interest, out of general collections on the Pooled Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account or, to the extent contemplated by the second paragraph of Section 3.05(a), in the other Master Servicer's Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee or the absence of Fiscal Agent, as applicable, for any determinations) outstanding P&I Advance made by the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Noteholder regarding nonrecoverability of debt service advances on the Beacon Seattle & DC Portfolio Non-Pooled Pari Passu Companion Loan. In connection thereby with the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ respect to any Pooled Mortgage Loan, Loan or REO Pooled Mortgage Loan as soon as practicable after any date when the ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-Pooled Pari Passu Companion Loan is included funds available for such purpose are deposited in another commercial mortgage securitization pursuant to which rated securities have been or are subsequently issuedsuch Master Servicer's Collection Account, and in connection no event shall interest accrue in accordance with the Beaver Brook Apartments Pooled Mortgage Loan, if (xthis Section 4.03(d) the Beaver Brook Apartments Non-Pooled Mortgage Loan becomes pari passu in right of payment with the Beaver Brook Apartments Pooled Mortgage Loan and (y) the Beaver Brook Apartments Non-Pooled Mortgage Loan is included in another commercial mortgage securitization pursuant on any P&I Advance as to which rated securities have been the corresponding Late Collection was received by or are subsequently issued, the following provisions shall apply: (a) if the applicable Master Servicer receives a written notice described in clause (i) on behalf of the second preceding paragraph Trust as of this Section 4.03(c) to the effect that the master servicer or other comparable party responsible for debt service advances with respect to the Non-Pooled Pari Passu Companion Loan under the related pooling and servicing agreement for such other commercial mortgage securitization has determined, pursuant P&I Advance Date.
(e) With regard to such agreement, that any debt service advance made or to be made with respect to such related Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this Agreement shall be deemed to constitute a Nonrecoverable Advance, notwithstanding the absence of any determination (as otherwise contemplated above) by any party hereto that any prior P&I Advance or any ▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance on such Pooled Mortgage Loan constitutes a NonrecAd
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)