Common use of P&I Advances Clause in Contracts

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, on each Master Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Trustee for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by the Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the 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 such P&I Advances to be made by the Master Servicer. Any amounts held in the Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit in the 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 Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool on such date pursuant to this Section 4.03(a) (and shall not have delivered to 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, to the actual knowledge of a Responsible Officer of the Trustee, shall not have remitted any other amounts required to be remitted by the Master Servicer on such date, then the Trustee shall provide notice of such failure to the Master Servicer by facsimile transmission as soon as possible, but in any event before 5:00 p.m., New York City time, on such Master Servicer Remittance Date. If after such notice the Trustee does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 a.m., New York City time, on the related Distribution Date, then 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 in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer with respect to the related Distribution Date. (b) The aggregate amount of P&I Advances to be made by the Master Servicer in respect of the Mortgage Pool for 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 Scheduled Payments, in each case net of any related Master Servicing Fees and Primary Servicing Fees, due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Trust Mortgage Loans on their respective Due Dates during the related Collection Period, in each case to the extent such amount was not paid by or on behalf of the related Borrower or otherwise collected by or on behalf of 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 Trust Mortgage Loan or REO Trust Mortgage Loan, then the interest portion of any P&I Advance required to be made in respect of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Loan in a Mortgage Loan Combination, to the extent allocated to such A Loan herein), and the denominator of which shall equal the Stated Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, 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. Also, notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder in respect of the Andover House Apartments B Loan or any CBA B Loan or any successor REO B Loan. (d) Subject to the last two sentences of this Section 4.03(d), the Master Servicer and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (with its own funds), for so long as such P&I Advance is outstanding (or, if such P&I Advance was made prior to the end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding following the end of such grace period). Such interest with respect to any P&I Advance shall be payable: (i) first, out of any Penalty Charges subsequently collected on the particular Trust Mortgage Loan or REO Trust 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 Penalty Charges are insufficient to cover such Advance Interest, out of general collections on the Trust Mortgage Loans and REO Properties on deposit in the Master Servicer's Collection Account; provided that interest earned on any P&I Advances made with respect to the A Loan of a Mortgage Loan Combination or any successor REO Trust Mortgage Loan in respect thereof shall be payable out of the related Mortgage Loan Combination Custodial Account, to the maximum extent permitted by the related Intercreditor Agreement, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The Master Servicer shall reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Trust Mortgage Loan or REO Trust Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is a Nonrecoverable P&I Advance, the Master Servicer may reimburse itself or the Trustee, as applicable, immediately from general collections in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the Master Servicer or the Trustee, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the preceding sentence, the Master Servicer or the Trustee, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Trust as of the related Master Servicer Remittance Date. In addition, the Master Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent a payment is received but is being held by or on behalf of the Master Servicer in suspense.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C2)

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c), either shall (i) remit from apply amounts in its own funds to Collection Account received after the Trustee for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by the Master Servicer in respect end of the Mortgage Pool for the related Distribution Date, (ii) apply amounts Collection Period or otherwise held in the Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such its obligation to make such P&I Advances or (ii) subject to Section 4.03(c) below, remit from its own funds to the Certificate Administrator for deposit into the Distribution Account an amount equal to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇&▇ Advances, or (iii) if any, to be made by the subject Master Servicer in respect of the related Distribution Date. Each Master Servicer may also make such P&I Advances in the form of any combination of clauses (i) and (ii) above aggregating the total amount of such P&I Advances to be made by the subject Master Servicer. Any amounts held in the a Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the 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 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) or, to the actual knowledge of a Responsible Officer of the Trustee, shall not have remitted any other amounts required to be remitted by the Master Servicer on such date, then the Trustee shall provide notice of such failure to the 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 either Master Servicer to the Trustee in writing) and by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 1, and (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, in the case of Master Servicer No. 2 (or such alternative number provided by either Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee Certificate Administrator does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee shall (not or a Fiscal Agent on its behalf) shall, no later than 12:00 noon11:00 a.m., New York City time, on the such related Distribution Date) Date make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the 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 the each Master Servicer in respect of (or, if necessary, by the Mortgage Pool Trustee or any Fiscal Agent) 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 Scheduled Periodic Payments, net of related Master Servicing Fees (and, in each the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related fees similar to Master Servicing Fees and Primary payable to third parties with respect to the Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto pursuant to the Outside Servicing FeesAgreement), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any successor REO Trust Mortgage Loans with respect thereto on their respective Due Dates during the related Collection Period, in each case Period to the extent such amount was not paid by or on behalf of the related Borrower Mortgagor or otherwise collected by or on behalf of the Trust (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 the Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the Outside Servicing Agreement), or if the final maturity on any Trust 212 Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case of the Outside Serviced Trust Mortgage Loan, by the applicable Outside Servicer pursuant to the Outside Servicing Agreement), and the Periodic Payment due and owing during the extension period is less than the related Assumed Periodic Payment, then the applicable Master Servicer, the Trustee or any Fiscal Agent shall, as to such Trust Mortgage Loan only, advance only the amount of the Periodic Payment due and owing after taking into account such reduction (net of related Master Servicing Fees) in the event of subsequent delinquencies thereon; and (ii) if it is determined that an Appraisal Reduction Amount exists with respect to any Required Appraisal Trust Mortgage Loan (or, in the case of the Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, if it is determined by the applicable Outside Servicer and reported to the applicable parties hereunder that an Appraisal Reduction Amount exists with respect to an Outside Serviced Loan Combination and a portion thereof is allocable to an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto), then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists with respect to the subject Trust Mortgage Loan or REO Trust Mortgage Loan, then as the case may be, the applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to advance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, only an amount equal to the sum of (A) the amount of the interest portion of any the P&I Advance that would otherwise be required without regard to be made this clause (y), 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 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 Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for the related such Distribution Date shall be reduced applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (it being herein acknowledged that there shall be no reduction in or the principal applicable portion thereof) is allocated pursuant to Section 4.04(e), weighted on the basis of the respective portions of such P&I Advance) Appraisal Reduction Amount allocable to equal the product of such Classes, and (iB) the amount of the interest principal portion of such the P&I Advance that would otherwise be required to be made in respect of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, for such Distribution Date without regard to this provisoclause (y). For the avoidance of doubt and subject to Section 4.03(c), multiplied by (ii) a fraction, expressed as a percentageMaster Servicer No. 1, the numerator of which Trustee and any Fiscal Agent, as applicable, shall equal each be required to make P&I Advances (and shall obtain recovery with respect thereto) with respect to the Stated Principal Balance of such Outside Serviced Trust Mortgage Loan or Loans and any successor REO Trust Mortgage Loan, as the case may be, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (Loans with respect thereto in the case of an A Loan in a Mortgage Loan Combination, to the extent allocated to same way that such A Loan herein), and the denominator of which shall equal the Stated Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, immediately prior to such Distribution Date. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be party is required to be made hereunder if such make and recover P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. Also, notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder in respect of the Andover House Apartments B Loan or any CBA B Loan or any successor REO B Loan. (d) Subject to the last two sentences of this Section 4.03(d), the Master Servicer and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (with its own funds), for so long as such P&I Advance is outstanding (or, if such P&I Advance was made prior to the end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding following the end of such grace period). Such interest Advances with respect to any P&I Advance shall be payable: (i) first, out of any Penalty Charges subsequently collected on the particular other Trust Mortgage Loan or REO Trust Mortgage Loan as to which such in the Mortgage Pool. If Master Servicer No. 1, the Trustee or any Fiscal Agent makes a P&I Advance relates; and (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that such Penalty Charges are insufficient to cover such Advance Interest, out of general collections on the Trust Mortgage Loans and REO Properties on deposit in the Master Servicer's Collection Account; provided that interest earned on any P&I Advances made with respect to the A Loan of a an Outside Serviced Trust Mortgage Loan Combination or any successor REO Trust Mortgage Loan in with respect thereof thereto, then it shall be payable promptly so notify the Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to the related Outside Serviced Loan Combination that includes such Outside Serviced Trust Mortgage Loan Combination Custodial Accountor any successor REO Trust Mortgage Loan with respect thereto, to the maximum extent permitted by the related Intercreditor Agreementby, before being paid and out of general collections on the Mortgage Pool on deposit in the Collection Account. The Master Servicer shall reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Trust Mortgage Loan or REO Trust Mortgage Loan as soon as practicable after funds available amounts specified for such purpose are deposited in the Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is a Nonrecoverable P&I Advanceunder, the Master Servicer may reimburse itself or related Co-Lender Agreement and/or the Trustee, as applicable, immediately from general collections in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the Master Servicer or the Trustee, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the preceding sentence, the Master Servicer or the Trustee, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Outside Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Trust as of the related Master Servicer Remittance Date. In addition, the Master Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent a payment is received but is being held by or on behalf of the Master Servicer in suspense.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C5)

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, 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 Trustee 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 the subject Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to . Each Master 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 such P&I Advances to be made by the subject Master Servicer. Any amounts held in the a Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the 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 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) or, to the actual knowledge of a Responsible Officer of the Trustee, shall not have remitted any other amounts required to be remitted by the Master Servicer on such date, then the Trustee shall provide notice of such failure to the 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 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee Certificate Administrator does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee shall (not or a Fiscal Agent on its behalf) shall, no later than 12:00 noon11:00 a.m., New York City time, on the such related Distribution Date) Date make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the 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 the each Master Servicer in respect of (or, if necessary, by the Mortgage Pool Trustee or any Fiscal Agent) 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 Scheduled Periodic Payments, net of related Master Servicing Fees (and, in each the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related fees similar to Master Servicing Fees and Primary payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Outside Servicing FeesAgreements), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any successor REO Trust Mortgage Loans with respect thereto on their respective Due Dates during the related Collection PeriodPeriod (or, in each the case of a Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which the subject Distribution Date occurs) to the extent such amount was not paid by or on behalf of the related Borrower Mortgagor or otherwise collected by or on behalf of the Trust (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 case may be, the applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to advance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, only an amount equal to the sum of (A) the amount of the interest portion of any 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 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 Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for the related such Distribution Date shall be reduced applicable to the respective Classes of Principal Balance Certificates and Group FL REMIC II Regular Interests to which such Appraisal Reduction Amount (it being herein acknowledged that there shall be no reduction in or the principal applicable portion thereof) is allocated pursuant to Section 4.04(d), weighted -251- on the basis of the respective portions of such P&I Advance) Appraisal Reduction Amount allocable to equal the product such Classes of Principal Balance Certificates and such Group FL REMIC II Regular Interests, and (iB) the amount of the interest principal portion of such the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1 (with respect to the Ala Moana Portfolio Trust Mortgage Loan and any successor REO Trust Mortgage Loans), Master Servicer No. 2 (with respect to the AmeriCold Trust Mortgage Loan and any successor REO Trust Mortgage Loans), and the 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 made 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 of such to any other Trust Mortgage Loan or REO Trust Mortgage Loan, Loan in the Mortgage Pool. If Master Servicer No. 1 or Master Servicer No. 2 (as the case may be, 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 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 LoanLoan with respect thereto, as then it shall promptly so notify the case may be, immediately prior relevant Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Outside Serviced Loan in a Mortgage Loan Combination, to the extent allocated to Combination that includes such A Loan herein), and the denominator of which shall equal the Stated Principal Balance of such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage LoanLoan with respect thereto, as to the case may bemaximum extent permitted by, immediately prior to and out of amounts specified for such Distribution Datepurpose 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. AlsoThe determination by a Master Servicer that it has made (or the determination by the Special Servicer that the Master Servicer has made) a Nonrecoverable P&I Advance or that any proposed P&I Advance, notwithstanding anything herein if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the contrary, no P&I Advance shall be required to be made hereunder in respect of the Andover House Apartments B Loan or any CBA B Loan or any successor REO B Loan. Fiscal Agent (d) Subject to the last two sentences of this Section 4.03(dif any), the Master Servicer Trustee, the Certificate Administrator and the Trustee shall each be entitled to receive interest at Depositor on or before the Reimbursement Rate in effect from time to time, accrued on the amount of each related P&I Advance made thereby Date, setting forth the basis for such determination, together with any other information, including Appraisals (with its own fundsthe cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e), for so long as such P&I Advance is outstanding ) (or, if no such P&I Advance was made prior Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the end related Mortgaged Property performed within the 12 months preceding such determination), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties, engineers' reports, environmental surveys and any grace period applicable to similar reports that the subject delinquent Monthly PaymentMaster Servicer or the Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, for so long as that support such P&I Advance is outstanding following determination by the end 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 such grace period). Such interest with respect to any P&I Advance shall be payable: (i) first, out the related Mortgagor under the terms of any Penalty Charges subsequently collected on the particular Trust Mortgage Loan or REO related Trust Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any outstanding Nonrecoverable Advances the reimbursement of which such P&I Advance relates; and is being deferred pursuant to Section 3.05(a), together with (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that accrued and unpaid) interest on such Penalty Charges are insufficient to cover Advances. In addition, any such Advance InterestPerson may update or change its recoverability determinations at any time, out of general collections on and the Trust Mortgage Loans Master Servicers (consistent with the Servicing Standard) and REO Properties on deposit the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Master Special Servicer's Collection Account; provided that interest earned on any P&I Advances made with possession for such purposes. With respect to the A Loan of a related Outside Serviced Trust Mortgage Loan Combination or any successor REO Trust Mortgage Loan in with respect thereof thereto, each of Master Servicer No. 1 and Master Servicer No. 2 shall be payable out (subject to the second succeeding sentence below) make its determination that it has made a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any determination made by the servicer with respect to a commercial mortgage securitization holding the promissory note for one of the related Non-Trust Mortgage Loans. If the applicable Master Servicer determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan Combination Custodial Accountor any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to the maximum extent permitted by the related Intercreditor Agreementsuch Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The Master Servicer shall reimburse itself would be, or the Trusteeis, 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 any outstanding a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, that a P&I Advance made thereby with respect to any an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is thereto constitutes or may, if made, constitute a Nonrecoverable P&I Advance, and (ii) either (A) the applicable Master Servicer may reimburse itself has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a response from the applicable Outside Servicer indicating that an appraisal with respect to the related Mortgaged Property would be performed within 60 days of the date of such response or has been performed within the Trustee, prior 12-month period (or such shorter period as applicable, immediately from general collections in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the applicable Master Servicer or the Trusteereasonably believes, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the Servicing Standard, is necessary) preceding sentencethe 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 or the Trusteereasonably believes, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(dthe Servicing Standard, is necessary) on any P&I Advance as to which preceding the corresponding Late Collection was received date of receipt by or on behalf the applicable Master Servicer that complies with the requirements for such an appraisal under the terms of the Trust as of relevant Outside Servicing Agreement or this Agreement, or (B) the applicable Master Servicer has made a request for an appraisal with respect to the related Master Mortgaged Property from the applicable Outside Servicer Remittance Date. In addition, and has been advised by the Master applicable Outside Servicer shall that such an appraisal with respect to the related Mortgaged Property will not be entitled to Advance Interest on any particular P&I Advance made thereby to performed within the extent a payment is received but is being held by or on behalf of the Master Servicer in suspense.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2007-C6)

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, 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 Trustee for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by the subject Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to . Each Master 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 such P&I Advances to be made by the subject Master Servicer. Any amounts held in the a Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the 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 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) or, to the actual knowledge of a Responsible Officer of the Trustee, shall not have remitted any other amounts required to be remitted by the Master Servicer on such date, then the Trustee shall provide notice of such failure to the 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 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee shall (not or a Fiscal Agent on its behalf) shall, no later than 12:00 noon11:00 a.m., New York City time, on the such related Distribution Date) Date make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the 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 the each Master Servicer in respect of (or, if necessary, by the Mortgage Pool Trustee or any Fiscal Agent) 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 Scheduled Periodic Payments, net of related Master Servicing Fees (and, in each the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related fees similar to Master Servicing Fees and Primary payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Outside Servicing FeesAgreements), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any successor REO Trust Mortgage Loans with respect thereto on their respective Due Dates during the related Collection PeriodPeriod (or, in each the case of a Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which the subject Distribution Date occurs) to the extent such amount was not paid by or on behalf of the related Borrower Mortgagor or otherwise collected by or on behalf of the Trust (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 case may be, the applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to advance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, only an amount equal to the sum of (A) the amount of the interest portion of any 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 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 Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for the related such Distribution Date shall be reduced applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (it being herein acknowledged that there shall be no reduction in or the principal applicable portion thereof) is allocated pursuant to Section 4.04(d), weighted on the basis of the respective portions of such P&I Advance) Appraisal Reduction Amount allocable to equal the product such Classes of Principal Balance Certificates, and (iB) the amount of the interest principal portion of such the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1 (with respect to the Seattle Needle Space Trust Mortgage Loan, the CGM RRI Hotel Portfolio Trust Mortgage Loan, the Lincoln Square Trust Mortgage Loan and any successor REO Trust Mortgage Loans with respect thereto) and Master Servicer No. 2 (with respect to the One Liberty Plaza Trust Mortgage Loan, the Scottsdale Fashion Square Trust Mortgage Loan, the ▇▇▇▇ Terminal Trust Mortgage Loan and any successor REO Trust Mortgage Loans with respect thereto), and the 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 made 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 of such to any other Trust Mortgage Loan or REO Trust Mortgage Loan, Loan in the Mortgage Pool. If Master Servicer No. 1 or Master Servicer No. 2 (as the case may be, 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 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 LoanLoan with respect thereto, as then it shall promptly so notify the case may be, immediately prior relevant Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Outside Serviced Loan in a Mortgage Loan Combination, to the extent allocated to Combination that includes such A Loan herein), and the denominator of which shall equal the Stated Principal Balance of such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage LoanLoan with respect thereto, as to the case may bemaximum extent permitted by, immediately prior to and out of amounts specified for such Distribution Datepurpose 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. AlsoThe determination by a Master Servicer that it has made (or the determination by the Special Servicer that the Master Servicer has made) a Nonrecoverable P&I Advance or that any proposed P&I Advance, notwithstanding anything herein if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the contrary, no P&I Advance shall be required to be made hereunder in respect of the Andover House Apartments B Loan or any CBA B Loan or any successor REO B Loan. Fiscal Agent (d) Subject to the last two sentences of this Section 4.03(dif any), the Master Servicer Trustee and the Trustee shall each be entitled to receive interest at Depositor on or before the Reimbursement Rate in effect from time to time, accrued on the amount of each related P&I Advance made thereby Date, setting forth the basis for such determination, together with any other information, including Appraisals (with its own fundsthe cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e), for so long as such P&I Advance is outstanding ) (or, if no such P&I Advance was made prior Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the end related Mortgaged Property performed within the 12 months preceding such determination), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties, engineers' reports, environmental surveys and any grace period applicable to similar reports that the subject delinquent Monthly PaymentMaster Servicer or the Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, for so long as that support such P&I Advance is outstanding following determination by the end 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 such grace period). Such interest with respect to any P&I Advance shall be payable: (i) first, out the related Mortgagor under the terms of any Penalty Charges subsequently collected on the particular Trust Mortgage Loan or REO related Trust Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any outstanding Nonrecoverable Advances the reimbursement of which such P&I Advance relates; and is being deferred pursuant to Section 3.05(a), together with (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that accrued and unpaid) interest on such Penalty Charges are insufficient to cover Advances. In addition, any such Advance InterestPerson may update or change its recoverability determinations at any time, out of general collections on and the Trust Mortgage Loans Master Servicers (consistent with the Servicing Standard) and REO Properties on deposit the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Master Special Servicer's Collection Account; provided that interest earned on any P&I Advances made with possession for such purposes. With respect to the A Loan of a related Outside Serviced Trust Mortgage Loan Combination or any successor REO Trust Mortgage Loan in with respect thereof thereto, each of Master Servicer No. 1 and Master Servicer No. 2 shall be payable out (subject to the second succeeding sentence below) make its determination that it has made a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any determination made by the servicer with respect to a commercial mortgage securitization holding the promissory note for one of the related Non-Trust Mortgage Loans. If the applicable Master Servicer determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan Combination Custodial Accountor any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to the maximum extent permitted by the related Intercreditor Agreementsuch Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The Master Servicer shall reimburse itself would be, or the Trusteeis, 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 any outstanding a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) the applicable Master Servicer reasonably believes, in accordance with the Servicing Standard, that a P&I Advance made thereby with respect to any an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is thereto constitutes or may, if made, constitute a Nonrecoverable P&I Advance, and (ii) either (A) the applicable Master Servicer may reimburse itself has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a response from the applicable Outside Servicer indicating that an appraisal with respect to the related Mortgaged Property would be performed within 60 days of the date of such response or has been performed within the Trustee, prior 12-month period (or such shorter period as applicable, immediately from general collections in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the applicable Master Servicer or the Trusteereasonably believes, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the Servicing Standard, is necessary) preceding sentencethe 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 or the Trusteereasonably believes, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(dthe Servicing Standard, is necessary) on any P&I Advance as to which preceding the corresponding Late Collection was received date of receipt by or on behalf the applicable Master Servicer that complies with the requirements for such an appraisal under the terms of the Trust as of relevant Outside Servicing Agreement or this Agreement, or (B) the applicable Master Servicer has made a request for an appraisal with respect to the related Master Mortgaged Property from the applicable Outside Servicer Remittance Date. In addition, and has been advised by the Master applicable Outside Servicer shall that such an appraisal with respect to the related Mortgaged Property will not be entitled to Advance Interest on any particular P&I Advance made thereby to performed within the extent a payment is received but is being held by or on behalf of the Master Servicer time periods specified in suspense.clause (ii)(A) above

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)

P&I Advances. (a) On or before 1:30 1:00 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇New York City time, on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section SECTION 4.03(c), either (i) remit from its own funds to the Trustee for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances, if any, to be made by the such Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the 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 such P&I Advances to be made by the such Master Servicer. Any amounts held in the either Master Servicer's Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the 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 Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool on such date pursuant to this Section SECTION 4.03(a) (and shall not have delivered to the Trustee the Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section SECTION 4.03(c)) or, to the actual knowledge of a Responsible Officer of the Trustee, or shall not have remitted any other amounts portion of the Master Servicer Remittance Amount required to be remitted by the such Master Servicer on such date, then the Trustee shall provide notice of such failure to the such Master Servicer by facsimile transmission as soon as possible, but in any event before 5:00 4:30 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 a.m.6:00 p.m., New York City time, on the related Distribution such P&I Advance Date, then the Trustee (or any Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the such Master Servicer with respect to the related Distribution Date. (b) The aggregate amount of P&I Advances to be made by the each Master Servicer in respect of the Mortgage Pool for any Distribution Date, subject to Section SECTION 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Scheduled Monthly Payments, in each case net of any related Master Servicing Fees and Primary Servicing Fees, due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which such Master Servicer is the applicable Master Servicer and any successor REO Trust Mortgage Loans on their respective Due Dates during the related Collection Period, in each case to the extent such -199- amount was not paid by or on behalf of the related Borrower or otherwise collected by or on behalf of the Trust as of the close of business on the related Determination Date; provided PROVIDED that, if an Appraisal Reduction Amount exists with respect to any Trust Mortgage Loan or REO Trust Mortgage Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Loan in a Mortgage Loan Combination, to the extent allocated to such A Loan herein)Amount, and the denominator of which shall equal the Stated Principal Balance of such Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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. AlsoThe determination by a Master Servicer (or, notwithstanding anything herein if applicable, the Trustee or any 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 made by such Person in its reasonable judgment and shall be evidenced by an Officer's Certificate delivered to the contraryDepositor, no to the applicable Special Servicer, to the Controlling Class Representative and, if made by a Master Servicer, to the Trustee (on or before the related P&I Advance Date in the case of a 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 and that support such determination. The Trustee and any 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. Each Special Servicer shall promptly furnish any party required to be made make P&I Advances hereunder with any information in respect of its possession regarding the Andover House Apartments B Loan or any CBA B Loan or any successor Specially Serviced Mortgage Loans and REO B LoanProperties as such party required to make P&I Advances may reasonably request. (d) Subject to the last two sentences of this Section 4.03(d)The Master Servicers, the Master Servicer Trustee and the Trustee any Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (with its own funds), for so long as such P&I Advance is outstanding (or, if such P&I Advance was made prior to the end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding following the end of such grace period). Such interest with respect to any P&I Advance shall be payable: (i) firstFIRST, in accordance with SECTIONS 3.05 and 3.26, out of any Penalty Default Charges subsequently collected on the particular Trust Mortgage Loan or REO Trust Mortgage Loan as to which such P&I Advance relates; and (ii) thenTHEN, after such P&I Advance is reimbursed, but only if and to the extent that such Penalty Default Charges are insufficient to cover such Advance Interest, out of general collections on the Trust Mortgage Loans and REO Properties on deposit in the applicable Master Servicer's Collection Account; provided that interest earned on any P&I Advances made with respect to the A Loan of a Mortgage Loan Combination or any successor REO Trust Mortgage Loan in respect thereof shall be payable out of the related Mortgage Loan Combination Custodial Account, to the maximum extent permitted by the related Intercreditor Agreement, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The applicable Master Servicer shall reimburse itself itself, the Trustee or the Trusteeany Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Trust Mortgage Loan or REO Trust Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the such Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is a Nonrecoverable P&I Advance, the Master Servicer may reimburse itself or the Trustee, as applicable, immediately from general collections and in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the Master Servicer or the Trustee, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the preceding sentence, the Master Servicer or the Trustee, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section SECTION 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Trust as of the related Master Servicer Remittance P&I Advance Date. In addition, the A Master -200- Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent a payment is received but is being held by or on behalf of the such Master Servicer in suspense.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, 1:00 p.m. (New York City time) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Trustee 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 the such Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the 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 such P&I Advances to be made by such Master Servicer; provided, that the Master ServicerServicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in the either Master Servicer's Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the 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., p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool 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, to the actual knowledge of a Responsible Officer of the Trustee, or shall not have remitted any other amounts portion of the Master Servicer Remittance Amount required to be remitted by the such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to the such Master Servicer by facsimile transmission as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee Certificate Administrator does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the such Master Servicer with respect to the related Distribution Date. (b) The aggregate amount of P&I Advances to be made by the 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 Pool for 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 Scheduled Monthly Payments, in each case net of any related Master Servicing Fees and Primary (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 FeesAgreement), due or deemed due, as the case may be, in respect of the Trust Pooled Mortgage Loans (including Balloon Trust as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Trust Mortgage Loans with respect thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Borrower or otherwise collected by or on behalf of 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 Trust Mortgage Loan or REO Trust Mortgage Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Loan in a Mortgage Loan Combination, to the extent allocated to such A Loan herein)Amount, and the denominator of which shall equal the Stated Principal Balance of such Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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. AlsoThe determination by a Master Servicer (or, notwithstanding anything herein 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 contraryDepositor, no 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 hereunder in with respect of to the Andover House Apartments B related Non-Pooled Pari Passu Companion Loan or any CBA B Loan (or any successor REO B mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such master servicer or comparable party; (ii) if such Master Servicer thereafter receives notice (which notice is accompanied by the supporting evidence for such determination) that such determination has been withdrawn or rescinded by such comparable party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to any Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I Advance, 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 the other pooling and servicing agreement. (d) Subject to the last two sentences of this Section 4.03(d), the The Master Servicer Servicers and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the 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 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 prior to has been Received by the end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding following the end of such grace periodTrust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any Penalty Default Charges subsequently collected on the particular Trust Pooled Mortgage Loan or REO Trust 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 Penalty Default Charges are insufficient to cover such Advance Interest, out of general collections on the Trust 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; provided that interest earned on any P&I Advances made with respect to the A Loan of a Mortgage Loan Combination or any successor REO Trust Mortgage Loan in respect thereof shall be payable out of the related Mortgage Loan Combination Custodial Account, to the maximum extent permitted by the related Intercreditor Agreement, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Trust Pooled Mortgage Loan or REO Trust Pooled Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the such Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is a Nonrecoverable P&I Advance, the Master Servicer may reimburse itself or the Trustee, as applicable, immediately from general collections and in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the Master Servicer or the Trustee, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the preceding sentence, the Master Servicer or the Trustee, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Trust as of the related P&I Advance Date. (e) With regard to such P&I Advances, the applicable Master Servicer Remittance Date. In addition, or the Master Servicer Trustee shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent a payment is received but is being held by or on behalf account for that part of the Master Servicer in suspense.P&I Advances which is attributable to Past G

Appears in 1 contract

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

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, 1:00 p.m. (New York City time) on each Master Servicer Remittance P&I Advance Date, the each Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Trustee 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 the such Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the 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 such P&I Advances to be made by such Master Servicer; provided, that the Master ServicerServicer shall give preference to amounts in clause (ii) of this sentence for purposes of making P&I Advances. Any amounts held in the either Master Servicer's Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the such Master Servicer's records and replaced by the such Master Servicer by deposit in the 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., p.m. (New York City time, ) on any Master Servicer Remittance P&I Advance Date, the either Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool 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, to the actual knowledge of a Responsible Officer of the Trustee, or shall not have remitted any other amounts portion of the Master Servicer Remittance Amount required to be remitted by the such Master Servicer on such date, then the Trustee Certificate Administrator shall provide notice of such failure to the such Master Servicer by facsimile transmission as soon as possible, but in any event before 5:00 p.m., 4:30 p.m. (New York City time, ) on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee Certificate Administrator does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 a.m., 9:00 a.m. (New York City time, ) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the such Master Servicer with respect to the related Distribution Date. (b) The aggregate amount of P&I Advances to be made by the 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 Pool for 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 Scheduled Monthly Payments, in each case net of any related Master Servicing Fees and Primary (and, in the case of each 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 FeesAgreement), due or deemed due, as the case may be, in respect of the Trust Pooled Mortgage Loans (including Balloon Trust as to which such Master Servicer is the applicable Master Servicer and any successor REO Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Trust Mortgage Loans with respect thereto on their respective Due Dates during occurring in the related Collection Periodmonth in which such Distribution Date occurs, in each case to the extent such amount was not paid Received by or on behalf of the related Borrower or otherwise collected by or on behalf of 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 Trust Mortgage Loan or REO Trust Mortgage Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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 Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Loan in a Mortgage Loan Combination, to the extent allocated to such A Loan herein)Amount, and the denominator of which shall equal the Stated Principal Balance of such Trust Mortgage Required Appraisal Loan or REO Trust Mortgage Loan, as the case may be, 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. AlsoThe determination by a Master Servicer (or, notwithstanding anything herein if applicable, the Trustee 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 assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time and may obtain from the applicable Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the applicable Special Servicer for such purposes. Any determination by a Master Servicer (or, if applicable, the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the contraryDepositor, no 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 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 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 Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the applicable Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made, would constitute a Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any Officer's Certificate (and accompanying information) of the applicable Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The applicable Special Servicer may update or change its recoverability determination at any time. In connection with each Non-Trust-Serviced Pooled Mortgage Loan, (i) if the applicable Master Servicer receives written notice (which notice is accompanied by the supporting evidence for such determination) that the related Non-Trust Master Servicer for the related Non-Pooled Pari Passu Companion Loan under the related Non-Trust Servicing Agreement has determined, pursuant to such Non-Trust Servicing Agreement, that any debt service advance made or to be made hereunder in with respect of to the Andover House Apartments B related Non-Pooled Pari Passu Companion Loan or any CBA B Loan (or any successor REO B mortgage loan with respect thereto) would not ultimately be recoverable out of collections on such Mortgage Loan (or such REO mortgage loan), then such Master Servicer shall deliver an Officer's Certificate to such effect to the Trustee, the Fiscal Agent, the applicable Special Servicer and the Depositor or shall forward a copy of the written notice received from such Non-Trust Master Servicer; (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 Non-Trust Master Servicer, or if P&I Advances related to such Non-Trust Pooled Mortgage Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by operation of the definition of "Nonrecoverable P&I Advance" herein, then such Master Servicer shall provide notice to such effect to the Trustee, the Fiscal Agent, the applicable Special Servicer and the Depositor; (iii) if such Master Servicer determines that any P&I Advance made or to be made with respect to such Non-Trust-Serviced Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall notify in writing such Non-Trust Master Servicer 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 Non-Trust-Serviced 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 Non-Trust Master Servicer 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 Non-Trust Master Servicer) 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 Non-Trust Servicing Agreement that imposes (in connection with the related Non-Pooled Pari Passu Companion Loan) on such Non-Trust Master Servicer duties (among others) that are substantially the same as the duties that are imposed (in connection with the related Non-Trust-Serviced 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 Non-Trust-Serviced Pooled Mortgage Loan as described above, such Master Servicer shall promptly forward such notice and the accompanying information to the applicable related Non-Trust Master Servicer. (d) Subject to the last two sentences of this Section 4.03(d)The Master Servicers, the Master Servicer Trustee and the Trustee Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the 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 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 prior to has been Received by the end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding following the end of such grace periodTrust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.27, out of any Penalty Default Charges subsequently collected on the particular Trust Pooled Mortgage Loan or REO Trust 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 Penalty Default Charges are insufficient to cover such Advance Interest, out of general collections on the Trust 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; provided that interest earned on any P&I Advances made with respect to the A Loan of a Mortgage Loan Combination or any successor REO Trust Mortgage Loan in respect thereof shall be payable out of the related Mortgage Loan Combination Custodial Account, to the maximum extent permitted by the related Intercreditor Agreement, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The applicable Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself itself, the Trustee or the TrusteeFiscal Agent, as applicable, for any outstanding P&I Advance made thereby with respect to any Trust Pooled Mortgage Loan or REO Trust Pooled Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the such Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is a Nonrecoverable P&I Advance, the Master Servicer may reimburse itself or the Trustee, as applicable, immediately from general collections and in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the Master Servicer or the Trustee, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the preceding sentence, the Master Servicer or the Trustee, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Trust as of the related Master Servicer Remittance P&I Advance Date. In addition. (e) With regard to such P&I Advances, the applicable Master Servicer Servicer, the Trustee or the Fiscal Agent shall not be entitled account for that part of the P&I Advances which is attributable to Advance Interest on any particular Past Grace Period Loans, and that part of the P&I Advance made thereby Advances which is attributable to Within Grace Period Loans. (f) Notwithstanding anything to the extent a payment is received but is being held by contrary, no P&I Advances shall be made with respect to the Lion Industrial Portfolio Non-Pooled Subordinate Loans or on behalf of the Master Servicer in suspenseany successor REO Mortgage Loan.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr3)

P&I Advances. (a) On or before 1:30 p.m., Ne▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇New York City time, on each P&I Advance Date, each Master Servicer Remittance Date, shall (i) apply amounts in its Collection Account received after the Master Servicer shall, 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 Trustee 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 the subject Master Servicer in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to . Each Master 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 such P&I Advances to be made by the subject Master Servicer. Any amounts held in the a Collection Account for future distribution and so used to make P&I Advances in respect of the Mortgage Pool shall be appropriately reflected in the applicable Master Servicer's records and replaced by the applicable Master Servicer by deposit in the 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 3:00 p.m., New York City time, on any Master Servicer Remittance P&I Advance Date, the a Master Servicer shall not have made any P&I Advance required to be made by it in respect of the Mortgage Pool on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(cAdvance)) or, to the actual knowledge of a Responsible Officer of the Trustee, shall not have remitted any other amounts required to be remitted by the Master Servicer on such date, then the Trustee shall provide notice of such failure to the a Servicing Officer of such Master Servicer by facsimile transmission sent to (704) 715-0036, in the case of Master Servicer No. 1, (913) 253-900▇, ▇▇ ▇▇▇ ▇▇▇▇ of Master Servicer No. 2, and (215) 328-▇▇▇▇, ▇▇ ▇▇▇ case of Master Servicer No. 3 (or such alter▇▇▇▇▇▇ ▇▇▇▇▇▇ provided by any Master Servicer to the Trustee in writing) and by telephone at (704) 593-7768, in the case of Master Servicer No. 1, (913) 253-900▇ ▇▇ (▇▇▇) ▇▇▇-9400, in the case of Master Servicer No. ▇, ▇▇▇ (▇▇▇) 328-▇▇▇▇, ▇▇ ▇▇▇ case of Master Servicer No. 3 (or such alter▇▇▇▇▇▇ ▇▇▇▇▇▇ provided by any Master Servicer to the Trustee in writing) as soon as possible, but in any event before 5:00 4:00 p.m., New York City time, on such Master Servicer Remittance P&I Advance Date. If after such notice the Trustee Certificate Administrator does not receive the full amount of such P&I Advances in respect of the Mortgage Pool by 11:00 10:00 a.m., New York City time, on the related Distribution Date, then then, subject to Section 4.03(c), (i) the Trustee shall (not or a Fiscal Agent on its behalf) shall, no later than 12:00 noon11:00 a.m., New York City time, on the such related Distribution Date) Date make the portion of such P&I Advances in respect of the Mortgage Pool that was required to be, but was not, made or remitted, as the case may be, by the 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 the each Master Servicer in respect of (or, if necessary, by the Mortgage Pool Trustee or any Fiscal Agent) 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 Scheduled Periodic Payments, net of related Master Servicing Fees (and, in each the case of the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto, further net of any related fees similar to Master Servicing Fees and Primary payable to third parties with respect to the Outside Serviced Trust Mortgage Loans or any successor REO Trust Mortgage Loans with respect thereto pursuant to the related Outside Servicing FeesAgreements), due or deemed due, as the case may be, in respect of the Trust Mortgage Loans (including including, without limitation, Balloon Trust Mortgage Loans delinquent as to their respective Balloon Payments) as to which the subject Master Servicer is acting in such capacity and any successor REO Trust Mortgage Loans with respect thereto on their respective Due Dates during the related Collection PeriodPeriod (or, in each the case of a Type II Late Payment Date Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, during the calendar month in which the subject Distribution Date occurs) to the extent such amount was not paid by or on behalf of the related Borrower Mortgagor or otherwise collected by or on behalf of the Trust (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 case may be, the applicable Master Servicer, the Trustee or any Fiscal Agent will be required in the event of subsequent delinquencies to advance in respect of the subject Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, only an amount equal to the sum of (A) the amount of the interest portion of any 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 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 Reduction Amount") and (2) the weighted average of the per annum Pass-Through Rates for the related such Distribution Date shall be reduced applicable to the respective Classes of Principal Balance Certificates to which such Appraisal Reduction Amount (it being herein acknowledged that there shall be no reduction in or the principal applicable portion thereof) is allocated pursuant to Section 4.04(d) and, if any portion of such P&I Advance) Appraisal Reduction Amount is allocable thereto pursuant to equal Section 4.04(d), the product Class A-MFL REMIC II Regular Interest, weighted on the basis of the respective portions of such Appraisal Reduction Amount allocable to such Classes and, if applicable, the Class A-MFL REMIC II Regular Interest, and (iB) the amount of the interest principal portion of such the P&I Advance that would otherwise be required without regard to this clause (y). For the avoidance of doubt and subject to Section 4.03(c), Master Servicer No. 1, the Trustee and any Fiscal Agent, as applicable, shall each be made required to make P&I Advances (and shall obtain recovery with respect thereto) with respect to the Outside Serviced Trust Mortgage Loans and any successor REO Trust Mortgage Loans with respect thereto in the same way that such party is required to make and recover P&I Advances with respect of such to any other Trust Mortgage Loan or REO Trust Mortgage Loan, as Loan in the case may be, for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentageMortgage Pool. If Master Servicer No. 1, the numerator of which shall equal the Stated Principal Balance of such 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 LoanLoan with respect thereto, as then it shall promptly so notify the case may be, immediately prior relevant Outside Master Servicer of each such P&I Advance so made thereby and shall seek reimbursement for such P&I Advance (together with interest thereon) out of amounts otherwise payable with respect to such Distribution Date, net of the related Appraisal Reduction Amount (in the case of an A Outside Serviced Loan in a Mortgage Loan Combination, to the extent allocated to Combination that includes such A Loan herein), and the denominator of which shall equal the Stated Principal Balance of such Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage LoanLoan with respect thereto, as to the case may bemaximum extent permitted by, immediately prior to and out of amounts specified for such Distribution Datepurpose 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. AlsoThe determination by a Master Servicer that it has made (or the determination by the Special Servicer that the Master Servicer has made) a Nonrecoverable P&I Advance or that any proposed P&I Advance, notwithstanding anything herein if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate delivered to the contrary, no P&I Advance shall be required to be made hereunder in respect of the Andover House Apartments B Loan or any CBA B Loan or any successor REO B Loan. Fiscal Agent (d) Subject to the last two sentences of this Section 4.03(dif any), the Master Servicer Trustee, the Certificate Administrator and the Trustee shall each be entitled to receive interest at Depositor on or before the Reimbursement Rate in effect from time to time, accrued on the amount of each related P&I Advance made thereby Date, setting forth the basis for such determination, together with any other information, including Appraisals (with its own fundsthe cost of which may be paid out of the Collection Accounts pursuant to Section 3.03(e), for so long as such P&I Advance is outstanding ) (or, if no such P&I Advance was made prior Appraisal has been performed pursuant to this Section 4.03(c), a copy of an Appraisal of the end related Mortgaged Property performed within the 12 months preceding such determination), related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Properties, engineers' reports, environmental surveys and any grace period applicable to similar reports that the subject delinquent Monthly PaymentMaster Servicer or the Special Servicer may have obtained consistent with the Servicing Standard and at the expense of the Trust Fund, for so long as that support such P&I Advance is outstanding following determination by the end 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 such grace period). Such interest with respect to any P&I Advance shall be payable: (i) first, out the related Mortgagor under the terms of any Penalty Charges subsequently collected on the particular Trust Mortgage Loan or REO related Trust Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Property in its "as is" or then current conditions and occupancies, as modified by such Person's reasonable assumptions (consistent with the Servicing Standard) regarding the possibility and effects of future adverse change with respect to such Mortgaged Property, to estimate and consider (among other things) future expenses, to estimate and consider (consistent with the Servicing Standard) (among other things) the timing of recoveries, and to consider the existence and amount of any outstanding Nonrecoverable Advances the reimbursement of which such P&I Advance relates; and is being deferred pursuant to Section 3.05(a), together with (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that accrued and unpaid) interest on such Penalty Charges are insufficient Advances. In addition, any such Person may update or change its recoverability determinations at any time, and the Master Servicers (consistent with the Servicing Standard) and the Trustee each may obtain from the Special Servicer any Appraisals or market value estimates or other information in the Special Servicer's possession for such purposes. With respect to cover such Advance Interest, out of general collections on the Outside Serviced Trust Mortgage Loans and REO Properties on deposit in the Master Servicer's Collection Account; provided that interest earned on any P&I Advances made with respect to the A Loan of a Mortgage Loan Combination or any successor REO Trust Mortgage Loan in with respect thereof thereto, Master Servicer No. 1 shall be payable out (subject to the second succeeding sentence below) make its determination that it has made a Nonrecoverable P&I Advance on such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto independently of any determination made by the servicer with respect to a commercial mortgage securitization holding the promissory note for one of the related Non-Trust Mortgage Loans. If Master Servicer No. 1 determines, in accordance with the provisions of this Agreement, that a proposed P&I Advance with respect to an Outside Serviced Trust Mortgage Loan Combination Custodial Accountor any successor REO Trust Mortgage Loan with respect thereto, if made, or any outstanding P&I Advance with respect to the maximum extent permitted by the related Intercreditor Agreementsuch Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto previously made, before being paid out of general collections on the Mortgage Pool on deposit in the Collection Account. The Master Servicer shall reimburse itself would be, or the Trusteeis, as applicable, a Nonrecoverable Advance, Master Servicer No. 1 will be required to provide the servicer of each securitization that holds the promissory note for any outstanding a related Non-Trust Mortgage Loan written notice of such determination within one (1) Business Day of the date of such determination. In addition, if (i) Master Servicer No. 1 reasonably believes, in accordance with the Servicing Standard, that a P&I Advance made thereby with respect to any an Outside Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the Master Servicer's Collection Account. Notwithstanding the foregoing, upon a determination that a P&I Advance previously made with respect to the Mortgage Pool is thereto constitutes or may, if made, constitute a Nonrecoverable P&I Advance, the and (ii) either (A) Master Servicer may reimburse itself No. 1 has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has not obtained, (x) within 15 Business Days of such request, a response from the applicable Outside Servicer indicating that an appraisal with respect to the related Mortgaged Property would be performed within 60 days of the date of such response or has been performed within the Trustee, prior 12-month period (or such shorter period as applicable, immediately from general collections in the Collection Account. Notwithstanding the foregoing, instead of obtaining reimbursement out of general collections on the Mortgage Pool immediately (as contemplated by Section 3.05(a)(vi)), the Master Servicer or the TrusteeNo. 1 reasonably believes, as applicable, may, in its sole discretion, after reimbursement of such amounts up to the principal portions of general collections, elect to obtain reimbursement for such Nonrecoverable P&I Advance over a period of time (not to exceed 12 months) and the unreimbursed portion of such P&I Advance will accrue interest at the Reimbursement Rate in effect from time to time. The Master Servicer must reimburse itself each month up to the amount of such collections otherwise allocable as principal. At any time after such a determination to obtain reimbursement over time in accordance with the Servicing Standard, is necessary) preceding sentencethe date of such request, and (y) within 60 days of the date of such response, a copy of an appraisal report with respect to the related Mortgaged Property, relating to an appraisal that has been performed within the 12-month period (or such shorter period as Master Servicer or the TrusteeNo. 1 reasonably believes, as applicable, may, in its sole discretion, decide to obtain reimbursement immediately. The fact that a decision to recover such Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of Certificateholders to the detriment of other Classes shall not constitute a violation of the Servicing Standard by the Master Servicer or a breach of any fiduciary duty owed to the Certificateholders by the Trustee, or a breach of any other contractual obligation owed to the Certificateholders by any party to this Agreement. In no event shall interest accrue in accordance with this Section 4.03(dthe Servicing Standard, is necessary) on any P&I Advance as to which preceding the corresponding Late Collection was received date of receipt by or on behalf Master Servicer No. 1, that complies with the requirements for such an appraisal under the terms of the Trust as of relevant Outside Servicing Agreement or this Agreement, or (B) Master Servicer No. 1 has made a request for an appraisal with respect to the related Mortgaged Property from the applicable Outside Servicer and has been advised by the applicable Outside Servicer that such an appraisal with respect to the related Mortgaged Property will not be performed within the time periods specified in clause (ii)(A) above, then Master Servicer Remittance DateNo. In addition, the Master Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby 1 may have an appraisal performed with respect to the extent a payment is received but is being held related Mortgaged Property by an Independent Appraiser or on behalf of other expert in real estate matters, which appraisal shall take into account the Master Servicer factors specified in suspense.Section 3.18

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Sources: Pooling and Servicing Agreement (CD 2007-Cd4 Commercial Mortgage Trust)