Appears in 6 contracts

Samples: Pooling and Servicing Agreement (BMO 2022-C3 Mortgage Trust), Pooling and Servicing Agreement (BMO 2022-C2 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2022-Gc48)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as mortgagee of record, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any ~~CREFI~~ Sabal Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders and the Combined Uncertificated VRR Interest ~~Owners~~Owner, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the related Mortgaged Property (other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Loan Combination and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property (other than an REO Property related to the Outside Serviced Mortgage Loan) (i) is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to REO Properties) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, the Combined Uncertificated VRR Interest ~~Owners~~ Owner and the Serviced Companion Loan Holders, claims under each related insurance policy maintained by it pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO Property, in each case unless such insurance is required to be maintained under the related Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Loan Documents if the originator of the Serviced Mortgage Loan or Serviced Loan Combination waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the Master Servicer or the Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or the Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which does not contain any carve out for terrorist or similar acts, if, and only if, the Special Servicer has determined in accordance with the Servicing Standard that the failure to maintain such insurance is an Acceptable Insurance Default; provided that, during the period that the Special Servicer is evaluating such insurance hereunder, the Master Servicer shall not be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 6 contracts

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as mortgagee of record, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders and the Uncertificated VRR Interest ~~Owners~~Owner, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the related Mortgaged Property (other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Loan Combination and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property (other than an REO Property related to the Outside Serviced Mortgage Loan) (i) is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to REO Properties) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, the Uncertificated VRR Interest ~~Owners~~ Owner and the Serviced Companion Loan Holders, claims under each related insurance policy maintained by it pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO Property, in each case unless such insurance is required to be maintained under the related Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Loan Documents if the originator of the Serviced Mortgage Loan or Serviced Loan Combination waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the Master Servicer or the Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or the Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which does not contain any carve out for terrorist or similar acts, if, and only if, the Special Servicer has determined in accordance with the Servicing Standard that the failure to maintain such insurance is an Acceptable Insurance Default; provided that, during the period that the Special Servicer is evaluating such insurance hereunder, the Master Servicer shall not be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Benchmark 2021-B26 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2021-B25 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2021-B24 Mortgage Trust)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as mortgagee of record, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any LCF Mortgage Loan or CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements ~~set forth~~ specified in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the related Mortgaged Property (other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Loan Combination and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property (other than an REO Property related to the Outside Serviced Mortgage Loan) (i) is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to REO Properties) agrees to prepare and present, on behalf of itself, the Trustee and the ~~Certificateholders, the Uncertificated VRR Interest Owners~~ Certificateholders and the Serviced Companion Loan Holders, claims under each related insurance policy maintained by it pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO Property, in each case unless such insurance is required to be maintained under the related Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Loan Documents if the originator of the Serviced Mortgage Loan or Serviced Loan Combination waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the Master Servicer or the Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or the Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which does not contain any carve out for terrorist or similar acts, if, and only if, the Special Servicer has determined in accordance with the Servicing Standard that the failure to maintain such insurance is an Acceptable Insurance Default; provided that, during the period that the Special Servicer is evaluating such insurance hereunder, the Master Servicer shall not be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (CF 2019-Cf3 Mortgage Trust), Pooling and Servicing Agreement (UBS Commercial Mortgage Trust 2019-C18), Pooling and Servicing Agreement (Bank 2019-Bnk24)

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2020-Gsa2), Pooling and Servicing Agreement (Benchmark 2020-B21 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2020-B20 Mortgage Trust)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by~~ maintain for each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred~~ ___________ percent (~~100~~___%) of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-~~insurer and provided such policy shall include a “replacement cost” rider~~insurer, (iiB) insurance providing coverage against 18 ___ months of rent interruptions and (or C) such ~~longer period or with such extended period endorsement~~ other insurance (including public liability insurance) as provided in the related Mortgage ~~or other Loan Document~~Loan. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to ___________ percent (___%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances), to the extent available at commercially reasonable rates, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as the Servicer or the Special Servicer, as applicable, determines, consistent with the related Mortgage and the Servicing Standard, to be in the best interests of the Trust Fund, and shall cause to be maintained with respect to each REO Property (B) insurance providing coverage against ___ months of rent ~~interruptions~~ interruptions, and (~~iii~~C) such other insurance as ~~is required~~ provided in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates and in the case of each of (~~as determined by the Special Servicer in accordance with the Servicing Standard~~A), ~~shall cause~~ (B), and (C) from a Qualified Insurer. In the case of any insurance otherwise required to be maintained ~~for each REO Property (other than an REO Property related~~ pursuant to ~~an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of~~ this section that is not being so maintained because the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer ~~may, without a Rating Agency Confirmation~~ or ~~the approval of~~ the Special Servicer, ~~to the extent consistent with the Servicing Standard~~as applicable, ~~permit the related Mortgagor to maintain insurance with an insurer~~ has deemed that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if it is not available ~~from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance~~ at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee detailing the steps that the Servicer or the Special Servicer, as applicable, took in seeking such insurance and the factors which led to its determination that such insurance is not so available. Any amounts collected by the ~~Master~~ Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the ~~Master Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance; provided, however, that each of the Servicer and the Special Servicer may maintain earthquake insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ maintain or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this ~~Section 3.08(a). Out-of-pocket expenses incurred by~~ Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the ~~Master Servicer or~~ standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section 3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. Costs to the Servicer of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the ~~Master~~ Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.6(vi); and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). The ~~Master~~ Servicer ~~(or~~ and the Special ~~Servicer, with respect to REO Properties) agrees~~ Servicer agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section ~~3.08(a~~3.8(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Servicer (or with respect to any REO Property, the Special Servicer) shall require that all insurance policies required hereunder shall name the Trustee or the Servicer (or with respect to any REO Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that ___ days' notice be given to the Servicer before termination to the extent required by the related Mortgage Loan Documents. (I) If the Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, ___-month rent interruptions or other required insurance on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or Special Servicer hereunder, as applicable, the Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) Each of the Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer or the Special Servicer, as applicable. In addition, each of the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. Each of the Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such subservicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer or the Special Servicer pursuant to this Section 3.8(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Benchmark 2021-B28 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2020-B17 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2021-B27 Mortgage Trust)

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (BMO 2023-C6 Mortgage Trust), Pooling and Servicing Agreement (BBCMS 2023-C20), Pooling and Servicing Agreement (BMO 2023-C4 Mortgage Trust)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances ~~and~~ to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and ~~windstorm~~ hurricane insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan~~ Loan. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Serviced Companion Loan;~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, if in each such case, such obligation will be subject to the ~~Loan Documents~~ provisions of this Agreement concerning Nonrecoverable Advances and to the availability of such insurance at commercially reasonable rates. The Special Servicer shall maintain, with respect to ~~any CREFI Mortgage Loan permit~~ each REO Property (i) public liability insurance providing such coverage against such risks as the ~~related Mortgagor to maintain~~Special Servicer determines, consistent with ~~the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in~~ the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, ~~permit~~ to be in the ~~related Mortgagor to maintain~~ best interests of the Trust Fund, (ii) insurance providing coverage against 18 months (or such longer period of time as is consistent with ~~an insurer that does not meet the requirements of~~ the Loan Documents ~~so long~~ and the Servicing Standard) of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”~~Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination, is required to be maintained pursuant to the terms of the Mortgage ~~Loan or Serviced Loan Combination~~Loan, the Master Servicer shall use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this ~~Section 3.08(a)~~Agreement a recovery under an insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions hereof relating to Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained by the Master Servicer or the Special Servicer, as applicable, that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Seller and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer or Special Servicer as a Property Advance and shall be reimbursable to the Master Servicer or Special Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and, unless otherwise required under the related Loan Documents, shall be issued by Qualified Insurers. (i) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (ii) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Gs Mortgages Sec Corp Ii Com Mort Pas THR Cert Ser 1998-C1), Pooling and Servicing Agreement (Gs Mortgages Sec Corp Ii Com Mort Pas THR Cert Ser 1998-C1), Pooling and Servicing Agreement (Gs Mortgages Sec Corp Ii Com Mort Pas THR Cert Ser 1998-C1)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as mortgagee of record, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any ~~CREFI~~ Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Whole Loan ~~Combination~~ Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Trust Certificateholders and the Uncertificated ~~VRR~~ Interest Owners, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the related Mortgaged Property (other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Whole Loan ~~Combination~~ or, if not specified, in-place at origination. If an REO Property (other than an REO Property related to the Outside Serviced Mortgage Loan) (i) is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to REO Properties) agrees to prepare and present, on behalf of itself, the Trustee and the Trust Certificateholders, the Uncertificated ~~VRR~~ Interest Owners and the Serviced Companion Loan Holders, claims under each related insurance policy maintained by it pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO Property, in each case unless such insurance is required to be maintained under the related Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Loan Documents if the originator of the Serviced Mortgage Loan or Serviced Whole Loan waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the Master Servicer or the Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or the Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which does not contain any carve out for terrorist or similar acts, if, and only if, the Special Servicer has determined in accordance with the Servicing Standard that the failure to maintain such insurance is an Acceptable Insurance Default; provided that, during the period that the Special Servicer is evaluating such insurance hereunder, neither the Master Servicer nor the Special Servicer, provided each party is acting in accordance with the Servicing Standard, shall be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (BMO 2023-C7 Mortgage Trust), Pooling and Servicing Agreement (BBCMS Mortgage Trust 2024-C30), Pooling and Servicing Agreement (BMO 2024-C10 Mortgage Trust)

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Benchmark 2024-V11 Mortgage Trust), Pooling and Servicing Agreement (BMO 2024-5c7 Mortgage Trust)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan ~~(other than an Outside Serviced Mortgage Loan)~~ and each Serviced Companion Loan (~~except to~~ other than the ~~extent that~~ Non-Serviced Mortgage Loan and the ~~failure to maintain such insurance coverage is an Acceptable Insurance Default~~Companion Loan related thereto), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related ~~Serviced~~ Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section ~~3.16 of this Agreement~~3.17, the Special ~~Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer~~ Servicer, in accordance with the Servicing Standard), shall cause to be maintained for each REO Property ~~(other than an REO Property related to an Outside Serviced Mortgage Loan)~~ no less insurance coverage than was previously required of the Mortgagor under the related Loan ~~Documents (except~~ Documents; provided that such insurance is available at commercially reasonable rates and the subject hazards are at the time commonly insured against by prudent owners of properties similar to the ~~extent~~ REO Property located in or around the region in which such REO Property is located (or, in the case of all-risk insurance or other insurance that ~~the failure to maintain~~ covers acts of terrorism, such insurance ~~coverage~~ is ~~an Acceptable Insurance Default~~available at a commercially reasonable rate or the subject hazards are at the time commonly insured against by prudent owners of properties similar to the REO Property located in or around the region in which such REO Property is located); ~~provided~~ provided, further, that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than ~~as indicated in~~ "A3" by Moody's or "A-" by Fitch, without Rating Agency Confirmation or the ~~definition of “Qualified Insurer”~~appxxxxx xf the Special Servicer, the Master Servicer may~~, without a Rating Agency Confirmation or the approval of the Special Servicer~~, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least ~~as indicated in the definition of “Qualified Insurer”~~"A3" by Moody's (or, if not rated by Moody's, at least "A" by AM Best or "A-" bx X&X) or "A-" by Fitch. All ~~insurance~~ xxxxxxxce for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 ~~of this Agreement~~ or the Whole Loan ~~Combination~~ Custodial Account pursuant to Section ~~3.05A of this Agreement~~3.05A, as applicable, subject to withdrawal pursuant to Section 3.05, ~~Section~~ 3.05A, ~~Section~~ 3.06 or ~~Section 3.06A of this Agreement.~~ 3.06A. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO Property and other than with respect to ~~an Outside~~ the Non-Serviced Mortgage ~~Loan~~Loan and the Companion Loan related thereto) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan or Serviced Whole Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan (other than the Non-Serviced Mortgage Loan) and the related ~~Serviced~~ Companion ~~Loan(s)~~ Loan and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Mortgage Loan or Serviced Whole Loan (other than the Non-Serviced Mortgage Loan) pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Whole Loan ~~Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a Mortgage Loan or Serviced Whole Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the ~~Certificateholders, the Uncertificated VRR Interest Owners~~ Certificateholders and the ~~Serviced~~ Companion Loan ~~Holders~~Noteholders, claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee and the Companion Loan Noteholders as the mortgagee, as loss payee, and shall be issued by Qualified Insurers. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property unless such insurance is required to be maintained under the related Loan Documents and is available at commercially reasonable rates; provided, however, that the Master Servicer shall have no obligation to maintain such earthquake or environmental insurance policy required under the related Loan Documents if the originator of the Mortgage Loan waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the applicable Special Servicer shall have the right, but not the duty, to obtain, at the Trust's expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Mortgage Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer's obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the applicable Master Servicer need not be made more frequently than annually but in any event shall be made at the approximate date on which the applicable Master Servicer receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain (and in the case of the Special Servicer, with respect any Specially Serviced Mortgage Loan), and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if, and only if the Special Servicer has determined in accordance with the Servicing Standard that either (a) such insurance is not available at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative or any Companion Loan Representative, as applicable, has approved the decision not to require the borrower to maintain terrorism insurance (provided that the decision of the Controlling Class Representative or Companion Loan Representative, as applicable, to grant or withhold such consent shall be disregarded by the Special Servicer if such consent or lack of consent would cause the Special Servicer to violate the Servicing Standard); provided, however, the Controlling Class Representative or Companion Loan Representative, as applicable, approval shall be deemed to have been given if it has not responded within five business days (or with respect to any Whole Loan, such other time period as may be set forth in the related Intercreditor Agreement) of receipt of the Special Servicer's written recommendation and the information upon which such recommendation is based; provided, further, that upon the Special Servicer's determination consistent with the Servicing Standard, that exigent circumstances do not allow the Special Servicer to consult with the Controlling Class Representative or Companion Loan Representative, as applicable, the Special Servicer shall not be required to do so; provided, further, that, during the period that the Special Servicer is evaluating such insurance hereunder, the Master Servicer shall not be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure; provided, further, that, during the period that the Controlling Class Representative or Companion Loan Representative is evaluating such insurance hereunder, neither the Master Servicer nor the Special Servicer, as the case may be, shall be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure, provided that the Master Servicer has given prompt notice to the Special Servicer, Controlling Class Representative or Companion Loan Representative of its determination that it will not be successful in its efforts to cause the Mortgagor to obtain such insurance, along with its determination, and any information in its possession, regarding the availability and cost of such insurance. The Special Servicer, Controlling Class Representative or Companion Loan Representative shall promptly notify the Master Servicer or the Special Servicer (with respect to the Controlling Class Representative or Companion Loan Representative), as the case may be, of each determination under this paragraph.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2006-Gg8), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2006-Gg8)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances ~~and~~ to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and ~~windstorm~~ hurricane insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan~~ Loan. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Serviced Companion Loan;~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, if in each such case, such obligation will be subject to the ~~Loan Documents~~ provisions of this Agreement concerning Nonrecoverable Advances and to the availability of such insurance at commercially reasonable rates. The Special Servicer shall maintain, with respect to ~~any CREFI Mortgage Loan permit~~ each REO Property (i) public liability insurance providing such coverage against such risks as the ~~related Mortgagor to maintain~~Special Servicer determines, consistent with ~~the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in~~ the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, ~~permit~~ to be in the ~~related Mortgagor to maintain~~ best interests of the Trust Fund, (ii) insurance providing coverage against 18 months (or such longer period of time as is consistent with ~~an insurer that does not meet the requirements of~~ the Loan Documents ~~so long~~ and the Servicing Standard) of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”~~Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination, is required to be maintained pursuant to the terms of the Mortgage ~~Loan or Serviced Loan Combination~~Loan, the Master Servicer shall use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this ~~Section 3.08(a)~~Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions hereof relating to Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained by the Master Servicer or the Special Servicer, as applicable, that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Seller and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer or Special Servicer as a Property Advance and shall be reimbursable to the Master Servicer or Special Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and, unless otherwise required under the related Loan Documents, shall be issued by Qualified Insurers. (I) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans and the Marriott Desert Springs Parent Loan hereunder in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan and the Marriott Desert Springs Parent Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Cert Series 1998 Gl Ii), Pooling and Servicing Agreement (Commercial Mortgage Pass Through Cert Series 1998 Gl Ii)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed ~~to be~~ a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other ~~Loan Document~~loan document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master . The Special Servicer shall ~~not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation~~ maintain fire and hazard insurance with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for extended coverage on each REO Property (~~other than~~ subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an ~~REO Property related~~ amount which is at least equal to ~~an Outside Serviced Mortgage Loan~~one hundred percent (100%) ~~no less insurance coverage than was previously required~~ of the ~~Mortgagor under~~ then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Loan Documents (except to the extent that the failure~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance ~~coverage is an Acceptable Insurance Default);~~ and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided ~~that~~ that, in each such case, such obligation will be subject to the ~~extent~~ provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the ~~Loan Documents require~~ Special Servicer determines, consistent with the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 24 months of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master Servicer~~ Servicer, Special Servicer, Trustee or ~~the Special Servicer~~ Fiscal Agent in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the ~~Master~~ Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer or Special Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer or Special Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The ~~Master~~ Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. Notwithstanding the foregoing provisions of this Section 3.08(a), the Servicer may permit the credit tenants with respect to Kmart Loans to self-insure with respect to the risks required to be insured against by this Section 3.08(a) in accordance with the terms of the related Credit Lease. Any determination made by the Servicer or Special Servicer that insurance is not commercially reasonably available shall be subject to confirmation by Fitch that such determination not to purchase such insurance will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Certificates rated by Fitch. (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or the Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer and the Special Servicer, as applicable. In addition, the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Asset Securitization Corp Series 1997-D5), Pooling and Servicing Agreement (Asset Securitization Corp Series 1997-D5)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer or Co-Servicer, as applicable, on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed ~~to be~~ a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (of rent interruptions or such longer period or with such extended period endorsement as provided in the related Mortgage or other ~~Loan Document) of rent interruptions~~ loan document and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan~~; provided that, if the Loan Documents with respect~~ . All insurance referred to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, above for Mortgaged Properties shall be from a ~~“Non-Conforming Policy”), the Master~~ Qualified Insurer. The Special Servicer shall ~~not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation~~ maintain fire and hazard insurance with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for extended coverage on each REO Property (~~other than~~ subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an ~~REO Property related~~ amount which is at least equal to ~~an Outside Serviced Mortgage Loan~~one hundred percent (100%) ~~no less insurance coverage than was previously required~~ of the ~~Mortgagor under~~ then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Servicer or Co-Servicer, as applicable, shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Servicer or Co-Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Loan Documents (except to the extent that the failure~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance ~~coverage is an Acceptable Insurance Default);~~ and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided ~~that~~ that, in each such case, such obligation will be subject to the ~~extent~~ provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the ~~Loan Documents require~~ Special Servicer determines, consistent with the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 24 months of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer, the Co-Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master Servicer~~ Servicer, Co-Servicer, Special Servicer, Trustee or ~~the Special Servicer~~ Fiscal Agent in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer or Co-Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, and the ~~Master~~ Servicer ~~will use efforts consistent~~ or Co-Servicer, in performing its obligations hereunder in accordance with the Servicing ~~Standard~~ Standard, is aware of such location, the Servicer or Co-Servicer, as applicable, shall use its reasonable best efforts to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Servicer, the Co-Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer, the Co-Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out~~Costs to the Servicer, Co-~~of-pocket expenses incurred by the Master~~ Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer, Co-Servicer or Special Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer, Co-Servicer or Special Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). ~~The Master~~ Each of the Servicer or Co-Servicer, as applicable (or the Special Servicer, with respect to the Specially Serviced Mortgage Loans and REO Properties) ), agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name (i) the Trustee or (ii) the Servicer or Co-Servicer, as applicable, or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. Any determination made by the Servicer, the Co-Servicer or the Special Servicer that insurance is not commercially reasonably available shall be subject to confirmation by Fitch and Xxxxx'x that such determination not to purchase such insurance will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Certificates rated by Fitch and Xxxxx'x, provided that the Servicer, the Co-Servicer and the Special Servicer shall not be required to maintain such insurance while Fitch and Xxxxx'x consider such determination. (I) If the Servicer, Co-Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer, Co-Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer, Co-Servicer or Special Servicer hereunder, as applicable, the Servicer, Co-Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer, Co-Servicer or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer, Co-Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer, the Co-Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer, the Co-Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer, the Co-Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer, the Co-Servicer and the Special Servicer, as applicable. In addition, the Servicer, the Co-Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer, the Co-Servicer or the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer, the Co-Servicer or the Special Servicer, as applicable, pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Capco America Securitization Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer ~~on behalf of the Trustee, as mortgagee of record,~~ shall ~~use efforts consistent with the Servicing Standard to~~ maintain or cause the related ~~Mortgagor to maintain, to the extent required by each Mortgage Loan (other than an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure~~ Obligor to maintain ~~such insurance coverage is an Acceptable Insurance Default)~~with respect to each Loan, and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of ~~(a) one hundred percent (100%) of~~ the ~~then “full~~ replacement ~~cost”~~ cost of the improvements which are part of such property and ~~equipment (excluding foundations~~the Principal Balance thereof, ~~footings and excavation costs), without deduction for physical depreciation, and (b)~~ but in no event greater than the ~~outstanding principal balance~~ maximum amount of such insurance required by the terms of the related Mortgage ~~Loan~~ Note or Mortgage. Notwithstanding the foregoing, if the maintenance of such lesser amount of fire and hazard insurance as required by the terms of the related ~~Serviced Companion Loan(s)~~ Mortgage Note or Mortgage would be insufficient, in the Servicer's judgment, to avoid the application of any co-insurance clause, then the Servicer shall maintain or require the related Obligor to maintain such greater amount of insurance as ~~is necessary~~ would be sufficient to ~~prevent~~ avoid the application of any co- insurance clause. The cost of any such insurance, if not paid by the Obligor, shall be a Property Protection Expense. If a loss occurs, the Servicer will deposit in the Collection Account at its own expense an amount equal to the lesser of such loss and the amount of any reduction in recovery under a fire and hazard insurance policy required to be maintained, provided (i) such ~~policy by reason of~~ reduction in recovery results from the application of a co-insurance ~~provisions~~ clause in such policy, and ~~to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider,~~ (ii) ~~insurance providing coverage against 18 months (or~~ if the proceeds of such ~~longer period or with such extended period endorsement as provided in~~ policy were applied to the restoration and repair of the related ~~Mortgage or other Loan Document)~~ Mortgaged Property, such proceeds would not be sufficient to restore such Mortgaged Property to its condition as of ~~rent interruptions~~ the date hereof, reasonable wear and ~~(iii)~~ tear excepted, because of such ~~other insurance as is required~~ reduction in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master recovery. The Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall also cause to be maintained ~~for~~ with a Qualified Insurer fire and hazard insurance with extended coverage including general liability on each REO ~~Property~~ in an amount which is at least equal to the greater of (~~other~~ i) an amount not less than ~~an REO Property~~ is necessary to avoid the application of any co-insurance clause contained in the related ~~to an Outside Serviced Mortgage Loan~~fire and hazard insurance policy and (ii) ~~no less insurance coverage than was previously required~~ the replacement cost of the ~~Mortgagor under the related Loan Documents (except to the extent that the failure to maintain~~ improvements which are a part of such property. The cost of any such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be ~~from~~ a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable ratesProperty Protection Expense. Any amounts to be collected ~~by the Master Servicer or the Special Servicer~~ under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Obligor in accordance with the terms of the related ~~Loan Documents~~Mortgage Note) shall immediately upon receipt be deposited ~~into~~ in the Collection Account pursuant to Section 3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this AgreementAccount. ~~Any cost incurred~~ If permitted by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders and the Uncertificated VRR Interest Owners, be added to the unpaid principal balance of the related Mortgage ~~Loan~~Note or Mortgage, ~~notwithstanding that~~ the ~~terms~~ Servicer may, and, in the case of ~~such Mortgage Loan so permit. It is understood and agreed that no~~ REO, shall, maintain with a Qualified Insurer, if reasonably commercially available, or, if applicable, may require the related Obligor to maintain, other ~~additional~~ forms of insurance ~~other than flood~~ including without limitation loss of rents endorsements, business interruption insurance or comprehensive public liability insurance. Notwithstanding the preceding sentence, the Servicer shall maintain earthquake insurance ~~subject~~ with respect to each REO if in the judgment of the Servicer such REO is located in an area where maintaining such insurance is consistent with prudent asset management standards for similar properties. Any such earthquake insurance shall be obtained from a Qualified Insurer and shall be in an amount equal to the ~~conditions set forth below is to be required~~ probable maximum loss on the related Mortgaged Property. The cost of any ~~Mortgagor or~~ insurance described in this paragraph shall be a Property Protection Expense to ~~be maintained~~ the extent any such cost is not paid by the ~~Master Servicer other than pursuant to~~ Obligor under the terms of the related ~~Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance~~Loan. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Obligor to ~~maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ maintain or will itself obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent reasonably commercially available, the cost thereof being a Property Protection Expense. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid ~~principal balance~~ Principal Balance of the related ~~Mortgage~~ Loan ~~and the related Serviced Companion Loan(s)~~ and (ii) the greater of (x) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan~~ Note or ~~Serviced Loan Combination~~ Mortgage and (y) the maximum amount of such insurance as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than~~ that has become an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property (other than an REO Property related to the Outside Serviced Mortgage Loan) (i) is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the ~~Special~~ Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect ~~thereof~~ of such REO providing substantially the same coverage as described in ~~this Section 3.08(a). Out-of-pocket expenses incurred by~~ the ~~Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by~~ preceding sentence, the ~~Master Servicer as~~ cost thereof being a Property ~~Advance~~ Protection Expense. If the Servicer fails to maintain such insurance and a recovery under a flood or fire and hazard insurance policy in respect of an REO located in a federally designated special flood area would have been available if such insurance were maintained thereon in accordance with the terms herein, the Servicer shall ~~be reimbursable~~ either (i) immediately deposit into the Collection Account at its own expense the amount that would have been recovered or (ii) apply to the ~~Master Servicer with interest~~ restoration and repair of the property at its own expense the ~~Advance Rate~~amount that would have been recovered. The ~~Master~~ Servicer ~~(or the Special Servicer, with respect to REO Properties)~~ agrees to prepare and ~~present, on behalf of itself, the Trustee and the Certificateholders, the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ present claims under each related insurance policy ~~maintained by it pursuant to this Section 3.08(a)~~ in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All policies required hereunder shall name the Indenture Trustee and the Issuer as loss payees. (b) If the Servicer determines that the Issuer would realize a cost saving as a result, the Servicer may elect to provide the insurance required by Section 2.08(a) by one or more multiproperty policies in lieu of by individual fire and hazard insurance policies with extended coverage for each property. Any such multiproperty policy shall be with a Qualified Insurer or will not result in the downgrading, withdrawal or qualification of the rating of any Class of Notes as confirmed in writing by each Rating Agency. The cost of any such multiproperty policy reasonably allocable to the Mortgaged Properties and REO shall be a Property Protection Expense. The cost of any such multiproperty policy not reasonably allocable to the Mortgaged Properties and REO shall be at the expense of the Servicer and any amount not payable under such policy because of a standard deductible clause contained in such policy shall be the responsibility of the Servicer. (c) The Servicer shall maintain at its own expense a fidelity bond issued by a Qualified Insurer and in the form and amount at least equal to that maintained by the Servicer with respect to comparable mortgage loans and properties in other portfolios owned by third parties and by prudent servicers servicing comparable mortgage loans for their own account, as applicable. The issuer of such fidelity bond shall be required to give at least fifteen days prior written notice of cancellation or nonrenewal of such fidelity bond to the Issuer and the Master Servicer and, until the Indenture is discharged, the Indenture Trustee. In addition, the Servicer, at its own expense, shall keep in force with a Qualified Insurer, during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of the Servicer's officers, employees and agents in connection with its obligations hereunder. The Servicer shall cause each and every subservicer to maintain a policy of insurance covering errors and omissions and a fidelity bond that meet such requirements. (d) The Servicer shall notify the Issuer and the Master Servicer and, while the Notes are outstanding, the Indenture Trustee, of any material changes that may occur in any policy of insurance covering errors and omissions and any fidelity bond and shall, upon written request of the Issuer, the Master Servicer or the Indenture Trustee, furnish to the requesting party copies of all binders and policies or certificates evidencing that such bond and insurance policy are in effect. The Servicer shall promptly notify the Issuer and the Master Servicer and, while the Notes are outstanding, the Indenture Trustee, of all cases of embezzlement or fraud or irregularities of operation, suspected or otherwise, relating to the servicing of the Assets by the Servicer and its employees, officers, directors, agents and representatives if such events involve funds relating to the Assets. The total of such losses, regardless of whether claims are filed with the applicable insurer or surety, shall be disclosed in such reports together with the amount of such losses covered by insurance. If a bond or insurance claim report is filed with any of the Servicer's bonding companies or insurers, relating to the Assets or the servicing thereof, a copy of such report (which report may omit any references to individuals suspected of such embezzlement, fraud or irregularities of operation) shall be promptly furnished by the Servicer to the Issuer and the Master Servicer and, while the Notes are outstanding, the Indenture Trustee and the Rating Agencies.

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) ~~The~~ Consistent with the Servicing Standard, the Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost~~” rider,~~ " rider and (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan~~; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain,~~ . Consistent with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this AgreementSpecial Servicing Standard, the Special Servicer ~~in accordance with the Servicing Standard and~~ shall maintain, to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders and the Uncertificated VRR Interest Owners, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the related Mortgaged Property (other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Loan Combination and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required -67- 81 by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. ~~If an REO Property (other than an REO Property related~~ In the case of any insurance otherwise required to be maintained pursuant to this Section that is not being so maintained because the ~~Outside Serviced Mortgage Loan) (i)~~ Master Servicer or the Special Servicer, as applicable, has determined that it is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is not available at commercially reasonable rates, the Master Servicer or the Special ~~Servicer will obtain (subject~~ Servicer, as applicable, shall deliver an Officer's Certificate to the ~~provisions of this Agreement concerning Nonrecoverable Advances)~~ Trustee and ~~maintain flood~~ each Rating Agency which details the steps that were taken in seeking such insurance ~~and/or earthquake~~ and the factors which led to the determination that such insurance ~~in respect thereof providing the same coverage as described in this Section 3.08(a)~~was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee (or owner with respect to REO Property), as loss payee. (I) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Mortgagor has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard or the Special Servicing Standard, as applicable. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer and the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers. The Master Servicer shall cause each and every subservicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such subservicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Amresco Commercial Mortgage Funding I Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required or permitted to be required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ from a Qualified Insurer with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-~~insurer and provided such policy shall include~~ insurer, in each case with a “replacement ~~cost”~~ cost rider, (iiB) insurance providing coverage against 18 months ~~(or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document)~~ of rent interruptions and (~~iii~~C) such other insurance ~~as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to~~ (including public liability insurance). The Special Servicer shall maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable ~~rates~~ rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as ~~determined by~~ the Special Servicer ~~in accordance~~ determines, consistent with the related Mortgage and the Servicing Standard), to be in the best interests of the Trust Fund, and shall cause to be maintained ~~for~~ with respect to each REO Property (B) insurance providing coverage against 18 months of rent interruptions, and (C) such other ~~than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously~~ insurance, in each case as required ~~of the Mortgagor under~~ in the related Mortgage Loan ~~Documents (except~~ Documents. In the case of any insurance otherwise required to be maintained pursuant to this section that is not being so maintained because the ~~extent~~ Master Servicer or the Special Servicer, as applicable, has deemed that ~~the failure to maintain such insurance coverage~~ it is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”not available at commercially reasonable rates, the Master Servicer ~~may, without a Rating Agency Confirmation~~ or ~~the approval of~~ the Special Servicer, as applicable, shall deliver an Officer's Certificate to the ~~extent consistent with~~ Trustee detailing the ~~Servicing Standard~~steps that the Master Servicer or the Special Servicer, ~~permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long~~ as ~~the related Mortgagor maintains insurance with an insurer rated at least as indicated~~ applicable, took in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering seeking such insurance ~~at commercially reasonable rates~~and the factors which led to its determination that such insurance is not so available. Any amounts collected by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the Master ~~Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, ~~to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances~~) and maintain~~ ), flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates, to the extent required under the related Mortgage Loan Documents. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section ~~3.08(a~~3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer ~~or Special Servicer in~~ of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the Master Servicer as a ~~Property~~ Servicing Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). The Master Servicer ~~(or~~ and the Special ~~Servicer, with respect to REO Properties) agrees~~ Servicer agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section ~~3.08(a~~3.8(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Master Servicer (or with respect to any REO Property, the Special Servicer) shall require that all insurance policies required hereunder shall name the Trustee or the Master Servicer (or with respect to any REO Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Master Servicer before termination to the extent required by the related Mortgage Loan Documents. (I) If the Master Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 18-month rent interruptions or other required insurance on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) Each of the Master Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Master Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, each of the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer. Notwithstanding the foregoing, so long as the long-term unsecured debt obligations of the Master Servicer or Special Servicer, as applicable, or its respective corporate parent have been rated "A" or better by S&P or "A2" or better by Xxxxx'x (or such lower rating as will not result in qualification, downgrading or withdrawal of the ratings then assigned to the Certificates, as evidenced in writing by the Rating Agencies), the Master Servicer or Special Servicer, as applicable, shall be entitled to provide self-insurance or obtain from its respective corporate parent adequate insurance, as applicable, with respect to its obligation hereunder to maintain a fidelity bond or an errors and omissions insurance policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certificates Series 1998 C1)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan ~~(other than an Outside Serviced Mortgage Loan)~~ and each ~~Serviced~~ Companion ~~Loan~~ Interest (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related ~~Serviced~~ Companion ~~Loan(s~~Interest(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 [__] months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related ~~Serviced~~ Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming PolicyInterest. Subject to Section 3.16 of this Agreement, the Special ~~Servicer~~ Servicer, in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing ~~Standard~~Standard and with the consent of the Controlling Class Representative (unless a Control Termination Event has occurred and is continuing and other than with respect to the related Whole Loan, for so long as the Companion Interest Holder or its designee is the Whole Loan Directing Holder) or the Whole Loan Directing Holder (with respect to such Whole Loan, for so long as the Companion Interest Holder or its designee is the Whole Loan Directing Holder), as applicable), shall cause to be maintained for each REO Property ~~(other than an REO Property related to an Outside Serviced Mortgage Loan)~~ no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than ~~as indicated in the definition of~~ “~~Qualified Insurer”, the Master Servicer may~~[___]” by [_____] or “[___]” by [_____], without a ~~Rating Agency~~ No Downgrade Confirmation or the approval of the Special Servicer, the Master Servicer may, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least ~~as indicated in the definition of~~ “~~Qualified Insurer”~~[___]” by [_____] or “[___]” by [_____] (or, if not rated by [_____], at least “[___]” by [_____]). All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Whole Loan ~~Combination~~ Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, ~~Section~~ 3.05A, ~~Section~~ 3.06 or ~~Section~~ 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan or Whole Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related ~~Serviced~~ Companion ~~Loan(s)~~ Interest and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a ~~Serviced~~ Mortgage Loan or Whole Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan or Whole Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the ~~Certificateholders, the Uncertificated VRR Interest Owners~~ Certificateholders and the ~~Serviced~~ Companion ~~Loan~~ Interest Holders, claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee and the Companion Interest Holders as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO property, in each case unless such insurance is required to be maintained under the related Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Loan Documents if the originator of the Mortgage Loan waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the applicable Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Mortgage Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the Master Servicer or Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which does not contain any carve out for terrorist or similar acts, if, and only if, the Special Servicer has determined in accordance with the Servicing Standard that the failure to maintain such insurance is an Acceptable Insurance Default; provided that, during the period that the Special Servicer is evaluating such insurance hereunder, the Master Servicer shall not be liable for any loss related to its failure to require the Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph. (1) If the Master Servicer or the Special Servicer obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Mortgagor has not maintained insurance required by the related Mortgage Loan (other than any Mortgagor that is required under the related Loan Documents to maintain insurance with an insurer rated better than “[___]” by [_____] or “[___]” by [_____] that maintains insurance with an insurer rated at least “[___]” by [_____] or “[___]” by [______] (or, if not rated by [______], at least “[___]” by [_____])) and/or the related Companion Interest(s) or the Special Servicer obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the REO Properties, as required under this Agreement, as the case may be, then the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a) of this Agreement. Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a) of this Agreement, and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account or, if applicable, related Whole Loan Custodial Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan or Whole Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholder and any related Companion Interest Holder, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master . The Special Servicer shall ~~not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation~~ maintain fire and hazard insurance with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for extended coverage on each REO Property (~~other than~~ subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an ~~REO Property related~~ amount which is at least equal to ~~an Outside Serviced Mortgage Loan~~one hundred percent (100%) ~~no less insurance coverage than was previously required~~ of the ~~Mortgagor under~~ then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Loan Documents (except to the extent that the failure~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance ~~coverage is an Acceptable Insurance Default);~~ and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided ~~that~~ that, in each such case, such obligation will be subject to the ~~extent~~ provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the ~~Loan Documents require~~ Special Servicer determines, consistent with the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 24 months of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master~~ Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination, is required to be maintained ~~pursuant to the terms of~~ by the Mortgage Loan ~~or Serviced Loan Combination~~and continues to be available at commercially reasonable rates, the ~~Master~~ Servicer shall use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by such Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and for so long as such insurance continues to be available at commercially reasonable rates~~Advances) ~~and maintain~~ earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the ~~Master~~ Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer or Special Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer or Special Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The ~~Master~~ Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or the Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Servicer or Special Servicer shall conclu- sively be deemed to have satisfied its respective obligations to main- tain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer and the Special Servicer, as applicable. In addition, the Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers, with the Trustee named as loss payee. The Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset Securitization Corp Com Mor Pass THR Cer Ser 1997 Md)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the ~~Trustee~~Owner, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain,~~ maintain with respect to ~~the extent required by~~ each ~~Mortgage Loan~~ Mortgaged Property (other than ~~an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~REO Property), and if the ~~Mortgagor~~ related Borrower does not so maintain, the Servicer shall ~~itself maintain (subject~~ cause to ~~the provisions of this Agreement concerning Nonrecoverable Advances and~~ be maintained, to the extent the ~~Trustee as mortgagee of record~~ Owner has an insurable ~~interest~~ interest, such insurance as is required under the related Mortgage Loan and ~~to the extent~~ which is available at commercially reasonable rates), providing coverage against (i) "all risks" of physical loss or damage, including fire and ~~hazard insurance (and windstorm insurance~~extended coverage, ~~if applicable) with extended coverage~~ on the related Mortgaged Property in an amount which is at least equal to the lesser of (ax) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (by) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the ~~Trustee~~ Owner thereunder from being deemed to be a co-~~insurer and provided such policy shall include a “replacement cost” rider~~insurer, (ii) rental loss insurance ~~providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in~~ equal to the aggregate amount of the Basic Rent payable under the related ~~Mortgage~~ Lease for a period of one year after the date of the fire or ~~other Loan Document)~~ casualty in question, irrespective of ~~rent interruptions~~ whether the Lease on the Mortgaged Property has been terminated during such one year period, and (iii) ~~such other insurance as is required~~ "forced place" coverage (in an amount which satisfies the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in ~~the related Loan Documents~~ item (~~any such insurance policy, a “Non-Conforming Policy”~~i) above)~~, the Master~~ . The Servicer shall also maintain, to the extent not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance inconsistent with the ~~Servicing Standard~~ immediately preceding sentence and to the extent available at commercially reasonable ~~rates (as determined by the Special Servicer in accordance~~ rates, with ~~the Servicing Standard), shall cause~~ respect to ~~be maintained for~~ each REO Property (~~other than an REO Property related to an Outside Serviced Mortgage Loan~~A) ~~no less~~ public liability insurance providing such coverage ~~than was previously required of~~ against such risks as the ~~Mortgagor under~~ Servicer determines, consistent with the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Owner and (B) such other insurance as was provided in the related ~~Mortgagor~~ Mortgage Loan immediately prior to ~~maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated~~ foreclosure in the ~~definition~~ case of ~~“Qualified Insurer”. All insurance for an REO Property shall be~~ each of (A) and (B) from a Qualified Insurer~~, if available from a Qualified Insurer, and if~~ . In the case of any insurance otherwise required to be maintained pursuant to this section that is not being so maintained because the Servicer has determined that it is not available ~~from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance~~ at commercially reasonable rates, the Servicer shall deliver an Officer's Certificate to the Owner detailing the steps that the Servicer took in seeking such insurance and the factors which lead to its determination that such insurance is not so available. Any amounts collected by the ~~Master Servicer or the Special~~ Servicer under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders and the Uncertificated VRR Interest Owners, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit3.06. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related Mortgage Loan ~~Documents~~ and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ maintain or will itself obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the ~~Special~~ Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with this Section ~~3.08(a)~~3.08 the standards applied to Mortgaged Properties described herein, the Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; PROVIDED, HOWEVER, that the Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim unless such refusal or inability results from the Servicer's negligence or willful misconduct. ~~Out-of-pocket expenses incurred by~~ Costs to the ~~Master~~ Servicer ~~or Special Servicer in~~ of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer with interest at the Property Advance Rate, which reimbursement may be effected under Section 3.06. The ~~Master~~ Servicer ~~(or the Special Servicer, with respect to REO Properties)~~ agrees to prepare and present, on behalf of ~~itself, the Trustee~~ itself and the ~~Certificateholders, the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders~~Owner, claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Servicer shall require that all insurance policies required hereunder shall name the Owner or the Servicer, on behalf of the Owner as the mortgagee, as loss payee. (I) If the Servicer obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 12-month rent interruptions or other required insurance on all of the Mortgage Loans as to which the Borrower has not maintained insurance, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.08(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Servicer shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer hereunder the Servicer agrees to prepare and present, on behalf of itself and the Owner, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), the Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.08(a). In the event that the Servicer shall cause any Mortgaged Property or REO Property to be covered by such a master force placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgage Property or REO Property is covered thereby) shall be paid by the Servicer as a Property Advance. Such policy may contain a deductible clause, in which case the Servicer shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Servicer shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer. In addition, the Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Interim Servicing Agreement (Capital Lease Funding Inc)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances ~~and~~ to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan~~ Loan. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Serviced Companion Loan;~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, if in each such case, such obligation will be subject to the ~~Loan Documents~~ provisions of this Agreement concerning Nonrecoverable Advances and to the availability of such insurance at commercially reasonable rates. The Special Servicer shall maintain, with respect to ~~any CREFI Mortgage Loan permit~~ each REO Property (i) public liability insurance providing such coverage against such risks as the ~~related Mortgagor to maintain~~Special Servicer determines, consistent with ~~the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in~~ the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, ~~permit~~ to be in the ~~related Mortgagor to maintain~~ best interests of the Trust Fund, (ii) insurance providing coverage against 18 months (or such longer period of time as is consistent with ~~an insurer that does not meet the requirements of~~ the Loan Documents ~~so long~~ and the Servicing Standard) of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”~~Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination, is required to be maintained pursuant to the terms of the Mortgage ~~Loan or Serviced Loan Combination~~Loan, the Master Servicer shall use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions hereof relating to Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Depositor and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer or Special Servicer as a Property Advance and shall be reimbursable to the Master Servicer or Special Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and, unless otherwise required under the related Loan Documents, shall be issued by Qualified Insurers. (I) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp Series 1997 Ll I)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by~~ maintain for each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-~~insurer and provided such policy shall include~~ insurer, in each case with a “replacement ~~cost”~~ cost rider, (iiB) insurance providing coverage against 18 12 months ~~(or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document)~~ of rent interruptions and (~~iii~~C) such other insurance (including public liability insurance), in each case as is required in the related Mortgage Loan ~~and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to~~ Documents. The Special Servicer shall maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable ~~rates~~ rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as ~~determined by~~ the Master Servicer or the Special ~~Servicer in accordance~~ Servicer, as applicable, determines, consistent with the related Mortgage and the Servicing Standard), to be in the best interests of the Trust Fund, and shall cause to be maintained ~~for~~ with respect to each REO Property (B) insurance providing coverage against 12 months of rent interruptions, and (C) such other ~~than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously~~ insurance, in each case as required ~~of the Mortgagor under~~ in the related Mortgage Loan ~~Documents (except~~ Documents. In the case of any insurance otherwise required to be maintained pursuant to this section that is not being so maintained because the ~~extent~~ Master Servicer or the Special Servicer, as applicable, has deemed that ~~the failure to maintain such insurance coverage~~ it is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”not available at commercially reasonable rates, the Master Servicer ~~may, without a Rating Agency Confirmation~~ or ~~the approval of~~ the Special Servicer, as applicable, shall deliver an Officer's Certificate to the ~~extent consistent with~~ Trustee detailing the ~~Servicing Standard~~steps that the Master Servicer or the Special Servicer, ~~permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long~~ as ~~the related Mortgagor maintains insurance with an insurer rated at least as indicated~~ applicable, took in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering seeking such insurance ~~at commercially reasonable rates~~and the factors which led to its determination that such insurance is not so available. Any amounts collected by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the Master ~~Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor to maintain~~Borrower, to the extent required ~~by each Serviced Loan, and if~~ under the related ~~Mortgagor does not so maintain~~Mortgage Loan Documents, ~~shall~~ to maintain or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section ~~3.08(a~~3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer ~~or Special Servicer in~~ of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). The Master Servicer ~~(or~~ and the Special ~~Servicer, with respect to REO Properties) agrees~~ Servicer agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section ~~3.08(a~~3.8(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Master Servicer (or with respect to any REO Property, the Special Servicer) shall require that all insurance policies required hereunder shall name the Trustee or the Master Servicer (or with respect to any REO Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Master Servicer before termination to the extent required by the related Mortgage Loan Documents. (I) If the Master Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 12-month rent interruptions or other required insurance on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) Each of the Master Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Master Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, each of the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. Each of the Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer or the Special Servicer pursuant to this Section 3.8(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer. Notwithstanding the foregoing, so long as the long-term unsecured debt obligations of the Master Servicer of Special Servicer, as applicable, or its respective corporate parent have been rated "A" or better by each Rating Agency or if not rated by each Rating Agency, rated "A" or better by at least two nationally recognized statistical rating organizations, the Master Servicer or Special Servicer, as applicable, shall be entitled to provide self-insurance or obtain from its respective corporate parent adequate insurance, as applicable, with respect to its obligation hereunder to maintain a fidelity bond or an errors and omissions insurance policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Acceptance Corp)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (BMO 2022-C1 Mortgage Trust)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as mortgagee of record, shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside~~ any Non-Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and windstorm insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “full replacement cost” of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan and the related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the ~~related~~ Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special ~~Servicer~~ Servicer, in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing ~~Standard~~Standard and (i) with the consent of the Controlling Class Representative (unless a Control Termination Event has occurred and is continuing) or (ii) if a Control Termination Event has occurred and is continuing, following consultation with the Controlling Class Representative (unless a Consultation Termination Event has occurred and is continuing), shall cause to be maintained for each REO Property ~~(other than an REO Property related to an Outside Serviced Mortgage Loan)~~ no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Mortgage Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Mortgage Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Mortgage Loan Documents) shall be deposited into the Collection Account pursuant to Section 3.05 of this Agreement or the Serviced Whole Loan ~~Combination~~ Custodial Account pursuant to Section 3.05A of this Agreement, as applicable, subject to withdrawal pursuant to Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO Property and other than with respect to ~~an Outside~~ a Non-Serviced Mortgage Loan) is located in a federally designated special flood hazard area, the Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan or Serviced Whole Loan, and if the related Mortgagor does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and the related ~~Serviced~~ Companion ~~Loan(s)~~ Loan and (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Whole Loan ~~Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be advanced by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to the REO ~~Properties~~Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the ~~Certificateholders, the Uncertificated VRR Interest Owners~~ Certificateholders and the ~~Serviced~~ Companion Loan Holders, claims under each related insurance policy maintained by it pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required to be maintained by the Master Servicer or Special Servicer hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and shall be issued by Qualified Insurers, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Notwithstanding the foregoing: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property and the Special Servicer shall not be required to maintain any earthquake or environmental insurance policy on any REO Property, in each case unless such insurance is required to be maintained under the related Mortgage Loan Documents and is available at commercially reasonable rates; provided, however, that neither the Master Servicer nor the Special Servicer shall have any obligation to maintain such earthquake or environmental insurance policy required under the related Mortgage Loan Documents if the originator of the Mortgage Loan or Serviced Whole Loan waived compliance with such insurance requirements (and if the applicable Master Servicer does not cause the Mortgagor to maintain or does not itself maintain such earthquake or environmental insurance policy on any Mortgaged Property, the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake or environmental insurance on any Mortgaged Property securing a Specially Serviced Loan or an REO Property so long as such insurance is available at commercially reasonable rates); (B) with respect to the Master Servicer’s obligation to cause the related Mortgagor to maintain such insurance, the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause any Mortgagor to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; and (C) in making determinations as to the availability of insurance at commercially reasonable rates or otherwise, the Master Servicer or the Special Servicer, as applicable, shall, to the extent consistent with the Servicing Standard, be entitled to rely, at its own expense, on insurance consultants in making such determination and any such determinations by the Master Servicer or the Special Servicer, as applicable, need not be made more frequently than annually but in any event shall be made at the approximate date on which the Master Servicer or the Special Servicer, as applicable, receives notice of the renewal, replacement or cancellation of coverage. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, shall not be required to maintain, and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all risk casualty insurance which

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CSAIL 2015-C4 Commercial Mortgage Trust)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (BMO 2023-C7 Mortgage Trust)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) ~~The~~ Consistent with the Servicing Standard, the Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related Mortgagor to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost~~” rider~~" rider and (ii) such other insurance as is required in the related Mortgage Loan. Consistent with the Special Servicing Standard, the Special Servicer shall maintain, to the extent available at commercially reasonable rates, fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related Mortgagor fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, PROVIDED that, in each such case, such obligation will be subject to the provisions of this Agreement concerning Nonrecoverable Advances. Consistent with the Special Servicing Standard, the Special Servicer shall maintain, to the extent available at commercially reasonable rates, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the Special Servicer determines, consistent with the related Mortgage and the Special Servicing Standard, to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 18 24 months ~~(or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document)~~ of rent interruptions and (iii) such other insurance as is was required in pursuant to the terms of the related Mortgage ~~Loan and the related Serviced Companion~~ Loan~~; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any~~ . All insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause required to be maintained ~~for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan~~in compliance with this Section 3.08(a) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, ~~if available from a Qualified Insurer, and if~~ so long as such requirement is not ~~available from a Qualified Insurer, from an insurance provider that is rated~~ inconsistent with the ~~next highest available rating who is offering such insurance at commercially reasonable rates~~applicable Loan Documents. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any Mortgagor or to be maintained by the Master Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related Mortgagor to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related Mortgagor does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee (or owner with respect to REO Property), as loss payee. (I) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Mortgagor has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard or the Special Servicing Standard, as applicable. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard or the Special Servicing Standard, as applicable. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer and the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Icifc Secured Assets Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the ~~Trustee, as mortgagee of record,~~ Trust Fund shall ~~use efforts consistent with the Servicing Standard to~~ maintain or cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by~~ maintain for each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default), and if the Mortgagor does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and to the extent the Trustee as mortgagee of record has an insurable interest and to the extent available at commercially reasonable rates), (iLoans) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property with a Qualified Insurer in an amount which is at least equal to the lesser of ~~(a) one hundred percent (100%) of~~ the then ~~“full replacement cost”~~ current Principal Balance of ~~the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related~~ such Mortgage Loan and the ~~related Serviced Companion Loan(s) or such greater amount as is necessary to prevent any reduction in such policy by reason~~ replacement cost of the ~~application~~ improvements which are a part of such property which would not give rise to co-insurance ~~provisions and~~ requirements, but only to ~~prevent~~ the ~~Trustee thereunder from being deemed~~ extent such insurance is required to be ~~a co-insurer and provided~~ maintained by the Borrower pursuant to the terms of such ~~policy shall include a “replacement cost” rider, (ii) insurance providing coverage against 18 months (~~Mortgage Loan or such ~~longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related~~ Mortgage Loan ~~and~~ permits the ~~related Serviced Companion Loan; provided that, if~~ mortgagee to require the ~~Loan Documents with respect~~ Borrower to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (maintain such insurance. The cost of any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as ~~determined by~~ well as the ~~Special Servicer in accordance with the Servicing Standard)~~amount of any deductible, shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the ~~failure to maintain such insurance coverage is~~ Trust Fund incurs a loss as a result thereof), if not borne by the Borrower, shall be an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval expense of the ~~Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements~~ Trust Fund payable out of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the Mortgagor in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement~~ 3.6 to the extent such Borrower defaulted on its obligation to maintain such insurance or pay such deductible. If any insurance required to be maintained by the ~~Loan Combination Custodial Account~~ Master Servicer pursuant to this Section ~~3.05A~~ 3.8 is available (whether or not at commercially reasonable rates) and is not maintained as required and any loss which is of ~~this Agreement~~a type which is or which would have been covered under any such policy occurs, (other than a loss occasioned by the termination of an insurance policy (except at the maturity of such policy) on which the Master Servicer, on behalf of the Trust Fund, is named as ~~applicable~~a loss payee and with respect to which the insurer failed to notify the Master Servicer of such termination in sufficient time prior to such termination to enable the Master Servicer to obtain insurance conforming to such requirements), ~~subject~~ the Master Servicer will deposit in the Collection Account from its own funds, without right of reimbursement therefor, an amount equal to ~~withdrawal pursuant~~ the amount of such loss occasioned by the failure to ~~Section 3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~maintain the required coverage. Any cost incurred by the Master Servicer or in maintaining the insurance required by this paragraph to the extent that the Borrower defaults in its obligation to do so shall be a Servicing Advance. (b) The Special Servicer on behalf of the Trust Fund shall cause to be maintained fire and hazard insurance with a Qualified Insurer with extended coverage on each related REO Property in an amount which is at least equal to the replacement cost of the improvements which are a part of such property having a deductible not in excess of $200,000 per property. The Special Servicer shall cause to be maintained with respect to each REO Property public liability insurance with a Qualified Insurer providing such coverage against such risks as the Special Servicer determines, consistent with the servicing standard set forth in Section 3.1(a), to be in the best interests of the Trust Fund. The cost of any such insurance with respect to an REO Property (as well as the amount of any deductible) shall be an expense of the Trust Fund payable out of the REO Account pursuant to Section 3.17(c) or, if the amount on deposit therein is insufficient therefor, out of the Collection Account pursuant to Section 3.6. Any Insurance Proceeds received by the Special Servicer shall be deposited into the REO Account, and any Insurance Proceeds received by the Master Servicer shall be deposited in the Collection Account pursuant to Section 3.5, subject to withdrawal pursuant to Section 3.6. Any cost incurred by the Special Servicer in maintaining ~~any such~~ the insurance required by this paragraph shall ~~not, for the purpose of calculating distributions to Certificateholders and the Uncertificated VRR Interest Owners,~~ be ~~added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit~~a Servicing Advance. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer or the Special Servicer, as applicable, other than pursuant to the terms of the related ~~Loan Documents~~ Note or Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If permitted by the related Note or Mortgage, the Master Servicer shall maintain, if available, or may require the related Borrower to maintain other forms of insurance including but not limited to, loss of rents, endorsements, business interruption insurance and comprehensive public liability insurance. If the Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced~~ was located at the time of origination of the Mortgage ~~Loan) is located~~ Loan in a federally designated special flood hazard area, the Master Servicer will ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ maintain or will itself obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent available and to the extent the related Mortgage Loan requires the Borrower, or permits the mortgagee to require the Borrower, to maintain such insurance. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the greater of (a) the maximum amount of such insurance required by the terms of the related Note or Mortgage ~~Loan or Serviced Loan Combination~~ and (b) the maximum amount of such insurance as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). ~~If a Mortgaged Property~~ The cost of any insurance described above (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as ~~such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in~~ well as the amount ~~required by the Mortgage Loan or Serviced Loan Combination or~~of any deductible), if not ~~specified~~borne by the Borrower, ~~in-place at origination~~shall be an expense of the Trust Fund payable out of the Collection Account pursuant to Section 3.6. If an REO Property ~~(other than an REO Property~~ was located at the time of origination of the related ~~to the Outside Serviced~~ Mortgage ~~Loan) (i) is located~~ Loan in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject~~ and maintain, or shall cause to ~~the provisions of this Agreement concerning Nonrecoverable Advances)~~ be obtained and ~~maintain~~ maintained, flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in ~~this Section 3.08(a)~~the second preceding sentence. ~~Out-of-pocket expenses incurred by~~ If a recovery under a flood, fire and hazard or public liability insurance policy in respect of an REO Property would have been available if such insurance were available (whether or not at commercially reasonable rates) and were maintained thereon in accordance with the ~~Master Servicer or~~ standards applied to Mortgaged Properties described herein, the Special Servicer ~~in maintaining insurance policies pursuant to this Section 3.08~~ shall ~~be advanced by the Master Servicer as a Property Advance and shall be reimbursable~~ either (i) immediately remit to the Master Servicer for deposit into the Collection Account from its own funds, without any right of reimbursement therefor, the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds, without any right of reimbursement therefor, the amount that would have been recovered, if such application would be consistent with ~~interest at~~ the ~~Advance Rate~~servicing standard set forth in Section 3.1(a). ~~The Master~~ Subject to customary servicing practices, each Special Servicer ~~(or the Special Servicer~~agrees, with respect to ~~REO Properties) agrees~~ the related Specially Serviced Mortgage Loans and the Master Servicer agrees, with respect to other Mortgage Loans, to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to ~~this Section 3.08(a~~Sections 3.8(a) and (b) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. Notwithstanding anything contained herein to the contrary, the Master Servicer and each Special Servicer shall be obligated to present such claims only if they become aware that a claim has not been presented by a Borrower and such insurance policies permit the Master Servicer or the Special Servicer to present such claims. All policies required hereunder shall name the Trustee, or the Master Servicer on behalf of the Trustee, as loss payee. (c) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy with a Qualified Insurer insuring against fire and hazard losses on all or a significant portion of the Mortgaged Properties which the Master Servicer or the Special Servicer, as applicable, services, which blanket policy shall be maintained at the expense of the Master Servicer or the Special Servicer, as the case may be, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of insurance coverage set forth in Sections 3.8(a) and (b) with respect to the Mortgage Loans covered by such blanket policy, it being understood and agreed that such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Sections 3.8(a) and (b), and there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds, without any right of reimbursement therefor, the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation pertaining to the policy, if any, maintained with respect to the related Mortgage Property, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the servicing standard set forth in Section 3.1(a). In connection with their respective activities as Master Servicer and Special Servicer hereunder, each of the Master Servicer and the Special Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (d) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount equal to the coverage which would be required by FNMA or FHLMC, whichever would be greater, if the Master Servicer were servicing the Mortgage Loans for FNMA or FHLMC and, in the case of LTC as Special Servicer, in the form and amount equal to coverage maintained by managers managing portfolios similar to those managed by LTC, as Special Servicer. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, respectively. The Master Servicer and Special Servicer, as the case may be, shall notify the Trustee as soon as practical of any cancellation of such fidelity bond. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its obligations to service the Mortgage Loans hereunder. The Master Servicer shall cause each and every subservicer for it, and the Special Servicer shall cause each and every subservicer for it, to maintain a policy of insurance covering errors and omissions and a fidelity bond which would meet such requirements. Each such fidelity bond and errors and omissions policy shall be issued by (i) an insurer having a claims-paying ability rating of at least "A" by S&P, (ii) an insurer whose obligations are guaranteed or backed by a company having such a claims-paying ability rating, or (iii) an insurer with respect to which the written confirmation of the Rating Agency has been obtained to the effect that the maintenance of a fidelity bond and errors and omissions policy issued by such insurer will not result in the qualification, downgrade or withdrawal of the then current ratings on the outstanding Classes of Certificates; PROVIDED, HOWEVER, that so long as the long term debt or deposit obligations of the Master Servicer or the Special Servicer are rated at least "A" by S&P, the Master Servicer or the Special Servicer, as applicable, shall be allowed to provide self-insurance with respect to an errors and omissions insurance policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (LTC Properties Inc)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its reasonable efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by~~ maintain for each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-~~insurer and provided such policy shall include a “replacement cost” rider~~insurer, (iiB) insurance providing coverage against 18 12 months of rent interruptions and (or C) such ~~longer period or with such extended period endorsement~~ other insurance (including public liability insurance) as provided in the related Mortgage ~~or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion~~ Loan~~; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to~~ . The Special Servicer shall maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable ~~rates~~ rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as ~~determined by~~ the Servicer or the Special ~~Servicer in accordance~~ Servicer, as applicable, determines, consistent with the related Mortgage and the Servicing Standard), to be in the best interests of the Trust Fund, and shall cause to be maintained ~~for~~ with respect to each REO Property (B) insurance providing coverage against 12 months of rent interruptions, and (C) such other ~~than an REO Property~~ insurance as provided in the related ~~to an Outside Serviced~~ Mortgage Loan~~) no less~~ . In the case of any insurance ~~coverage than was previously~~ otherwise required of to be maintained pursuant to this section that is not being so maintained because the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer ~~may, without a Rating Agency Confirmation~~ or ~~the approval of~~ the Special Servicer, ~~to the extent consistent with the Servicing Standard~~as applicable, ~~permit the related Mortgagor to maintain insurance with an insurer~~ has deemed that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if it is not available ~~from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance~~ at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee detailing the steps that the Servicer or the Special Servicer, as applicable, took in seeking such insurance and the factors which led to its determination that such insurance is not so available. Any amounts collected by the ~~Master~~ Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the ~~Master Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its reasonable efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ maintain or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this ~~Section 3.08(a). Out-of-pocket expenses incurred by~~ Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the ~~Master Servicer or~~ standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section 3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. Costs to the Servicer of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the ~~Master~~ Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). The ~~Master~~ Servicer ~~(or~~ and the Special ~~Servicer, with respect to REO Properties) agrees~~ Servicer agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section ~~3.08(a~~3.8(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Servicer (or with respect to any REO Property, the Special Servicer) shall require that all insurance policies required hereunder shall name the Trustee or the Servicer (or with respect to any REO Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Servicer before termination to the extent required by the related Mortgage Loan Documents. (I) If the Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 12-month rent interruptions or other required insurance on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or Special Servicer hereunder, as applicable, the Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) Each of the Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer or the Special Servicer, as applicable. In addition, each of the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. Each of the Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such subservicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer or the Special Servicer pursuant to this Section 3.8(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Acceptance Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its reasonable efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by~~ maintain for each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-~~insurer and provided such policy shall include~~ insurer, in each case with a “replacement ~~cost”~~ cost rider, (iiB) insurance providing coverage against 18 12 months of rent interruptions and (or C) such ~~longer period or with such extended period endorsement~~ other insurance (including public liability insurance) as provided in the related Mortgage ~~or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage Loan and the related Serviced Companion~~ Loan~~; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to~~ . The Special Servicer shall maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable ~~rates~~ rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as ~~determined by~~ the Servicer or the Special ~~Servicer in accordance~~ Servicer, as applicable, determines, consistent with the related Mortgage and the Servicing Standard), to be in the best interests of the Trust Fund, and shall cause to be maintained ~~for~~ with respect to each REO Property (B) insurance providing coverage against 12 months of rent interruptions, and (C) such other ~~than an REO Property~~ insurance as provided in the related ~~to an Outside Serviced~~ Mortgage Loan~~) no less~~ . In the case of any insurance ~~coverage than was previously~~ otherwise required of to be maintained pursuant to this section that is not being so maintained because the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer ~~may, without a Rating Agency Confirmation~~ or ~~the approval of~~ the Special Servicer, ~~to the extent consistent with the Servicing Standard~~as applicable, ~~permit the related Mortgagor to maintain insurance with an insurer~~ has deemed that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if it is not available ~~from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance~~ at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee detailing the steps that the Servicer or the Special Servicer, as applicable, took in seeking such insurance and the factors which led to its determination that such insurance is not so available. Any amounts collected by the ~~Master~~ Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the ~~Master Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its reasonable efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to ~~maintain, to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ maintain or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this ~~Section 3.08(a). Out-of-pocket expenses incurred by~~ Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the ~~Master Servicer or~~ standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section 3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. Costs to the Servicer of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the ~~Master~~ Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). The ~~Master~~ Servicer ~~(or~~ and the Special ~~Servicer, with respect to REO Properties) agrees~~ Servicer agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section ~~3.08(a~~3.8(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Servicer (or with respect to any REO Property, the Special Servicer) shall require that all insurance policies required hereunder shall name the Trustee or the Servicer (or with respect to any REO Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Servicer before termination to the extent required by the related Mortgage Loan Documents. (I) If the Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 12-month rent interruptions or other required insurance on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or Special Servicer hereunder, as applicable, the Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) Each of the Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer or the Special Servicer, as applicable. In addition, each of the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. Each of the Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such subservicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer or the Special Servicer pursuant to this Section 3.8(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Midland Realty Accept Corp Com Mort Pass THR Cert Se 1996-C1)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required or permitted to be required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ from a Qualified Insurer with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee as mortgagee thereunder from being deemed to be a co-~~insurer and provided such policy shall include~~ insurer, in each case with a “replacement ~~cost”~~ cost rider, (iiB) insurance from a Qualified Insurer providing coverage against 18 months of rent interruptions and (C) such other insurance as provided under the subject Mortgage Loan (including public liability insurance) from a Qualified Insurer. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as the Special Servicer determines, consistent with the related Mortgage and the Servicing Standard, to be in the best interests of the Trust Fund, and shall cause to be maintained with respect to each REO Property (B) insurance providing coverage against 18 months ~~(or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document)~~ of rent ~~interruptions~~ interruptions, and (~~iii~~C) such other ~~insurance~~ insurance, in each case as is required in the related Mortgage Loan ~~and~~ Documents. In the ~~related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement,~~ case of any insurance ~~policy~~ otherwise required to be maintained pursuant to this section that ~~(A)~~ is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has ~~coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B)~~ deemed that it is ~~provided by an insurer that does~~ not ~~meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”)~~available at commercially reasonable rates, the Master Servicer ~~shall not consent~~ or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, as applicable, shall deliver an Officer's Certificate to the ~~extent consistent with~~ Trustee, the ~~Servicing Standard~~Controlling Class Representative, ~~permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements~~ and each of the ~~Loan Documents so long~~ Rating Agencies detailing the steps that the Master Servicer or the Special Servicer, as ~~the related Mortgagor maintains insurance with an insurer rated at least as indicated~~ applicable, took in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering seeking such insurance ~~at commercially reasonable rates~~and the factors which led to its determination that such insurance is not so available. Any amounts collected by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the Master ~~Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, ~~to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances~~) and maintain~~ ), flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates, to the extent required under the related Mortgage Loan Documents. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section ~~3.08(a~~3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer ~~or Special Servicer in~~ of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the Master Servicer as a ~~Property~~ Servicing Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). On or before the Closing Date, with respect to each of the Mortgage Loans, the Depositor shall notify the insurer under the related Environmental Insurance Policy and take all other action on behalf of the Trustee that is necessary for the Trustee, for the benefit of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust, to make claims) under such Environmental Insurance Policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a claim under any Environmental Insurance Policy in respect of any Mortgage Loan, the Master Servicer shall, in accordance with the terms of such Environmental Insurance Policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such Environmental Insurance Policy in order to realize the full value thereof for the benefit of the Certificateholders, but only if the Master Servicer determines that making a claim or taking such other actions would be in the best interests of the Certificateholders. With respect to each Environmental Insurance Policy in respect of a Mortgage Loan, the Master Servicer shall review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any claim must be made or any action must be taken under such policy to realize the full value thereof for the benefit of the Certificateholders in the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the Master Servicer receives notice of any termination of any Environmental Insurance Policy with respect to a Mortgage Loan, the Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer shall address such termination in accordance with this Section 3.8(a). Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with a resolution of such termination of an Environmental Insurance Policy shall be paid by the Master Servicer and shall be reimbursable to it as a Servicing Advance. The Master Servicer (or with respect to any REO Property, the Special Servicer, ) shall require that all insurance policies required hereunder shall name the Trustee or the Master Servicer (or with respect to any REO ~~Properties~~Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Master Servicer before termination to the extent required by the related Mortgage Loan Documents. (i) If the Master Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 18-month rent interruptions or other required insurance on all of the Mortgage Loans and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and ~~the~~ Certificateholders~~, the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders~~, claims under ~~each related insurance~~ any such blanket policy ~~maintained by~~ which it ~~pursuant to this Section 3.08(a)~~ maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (ii) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to ~~permit recovery~~be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard. (c) Each of the Master Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Master Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, each of the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer. Notwithstanding the foregoing, so long as the long-term unsecured debt obligations of the Master Servicer or Special Servicer, as applicable, or its respective corporate parent have been rated "A" or better by each Rating Agency (or such lower rating for which Rating Agency Confirmation has been obtained), the Master Servicer or Special Servicer, as applicable, shall be entitled to provide self-insurance or obtain from its respective corporate parent adequate insurance, as applicable, with respect to its obligation hereunder to maintain a fidelity bond or an errors and omissions insurance policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Acceptance Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required or permitted to be required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ from a Qualified Insurer with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee as mortgagee thereunder from being deemed to be a co-~~insurer and provided such policy shall include~~ insurer, in each case with a “replacement ~~cost”~~ cost rider, (iiB) insurance from a Qualified Insurer providing coverage against 18 months of rent interruptions and (C) such other insurance as provided under the subject Mortgage Loan (including public liability insurance) from a Qualified Insurer. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as the Special Servicer determines, consistent with the related Mortgage and the Servicing Standard, to be in the best interests of the Trust Fund, and shall cause to be maintained with respect to each REO Property (B) insurance providing coverage against 18 months ~~(or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document)~~ of rent ~~interruptions~~ interruptions, and (~~iii~~C) such other ~~insurance~~ insurance, in each case as is required in the related Mortgage Loan ~~and~~ Documents. In the ~~related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement,~~ case of any insurance ~~policy~~ otherwise required to be maintained pursuant to this section that ~~(A)~~ is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has ~~coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B)~~ deemed that it is ~~provided by an insurer that does~~ not ~~meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”)~~available at commercially reasonable rates, the Master Servicer ~~shall not consent~~ or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, as applicable, shall deliver an Officer's Certificate to the ~~extent consistent with~~ Trustee, the ~~Servicing Standard~~Controlling Class Representative, ~~permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements~~ and each of the ~~Loan Documents so long~~ Rating Agencies detailing the steps that the Master Servicer or the Special Servicer, as ~~the related Mortgagor maintains insurance with an insurer rated at least as indicated~~ applicable, took in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering seeking such insurance ~~at commercially reasonable rates~~and the factors which led to its determination that such insurance is not so available. Any amounts collected by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the Master ~~Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, ~~to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances~~) and maintain~~ ), flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates, to the extent required under the related Mortgage Loan Documents. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section ~~3.08(a~~3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer ~~or Special Servicer in~~ of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the Master Servicer as a ~~Property~~ Servicing Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). On or before the Closing Date, with respect to each of the Mortgage Loans, the Depositor shall notify the insurer under the related Environmental Insurance Policy and take all other action on behalf of the Trustee that is necessary for the Trustee, for the benefit of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust, to make claims) under such Environmental Insurance Policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a claim under any Environmental Insurance Policy in respect of any Mortgage Loan, the Master Servicer shall, in accordance with the terms of such Environmental Insurance Policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such Environmental Insurance Policy in order to realize the full value thereof for the benefit of the Certificateholders, but only if the Master Servicer determines that making a claim or taking such other actions would be in the best interests of the Certificateholders. With respect to each Environmental Insurance Policy in respect of a Mortgage Loan, the Master Servicer shall review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any claim must be made or any action must be taken under such policy to realize the full value thereof for the benefit of the Certificateholders in the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the Master Servicer receives notice of any termination of any Environmental Insurance Policy with respect to a Mortgage Loan, the Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer shall address such termination in accordance with this Section 3.8(a). Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with a resolution of such termination of an Environmental Insurance Policy shall be paid by the Master Servicer and shall be reimbursable to it as a Servicing Advance. The Master Servicer (or with respect to any REO Property, the Special Servicer, ) shall require that all insurance policies required hereunder shall name the Trustee or the Master Servicer (or with respect to any REO ~~Properties~~Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Master Servicer before termination to the extent required by the related Mortgage Loan Documents. (i) If the Master Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 18-month rent interruptions or other required insurance on all of the Mortgage Loans and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and ~~the~~ Certificateholders~~, the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders~~, claims under ~~each related insurance~~ any such blanket policy ~~maintained by~~ which it ~~pursuant to this Section 3.08(a)~~ maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (ii) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to ~~permit recovery~~be covered by a master force placed insurance 84 policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard. (c) Each of the Master Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Master Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, each of the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer. Notwithstanding the foregoing, so long as the long-term unsecured debt obligations of the Master Servicer or Special Servicer, as applicable, or its respective corporate parent have been rated "A" or better by each Rating Agency (or such lower rating for which Rating Agency Confirmation has been obtained), the Master Servicer or Special Servicer, as applicable, shall be entitled to provide self-insurance or obtain from its respective corporate parent adequate insurance, as applicable, with respect to its obligation hereunder to maintain a fidelity bond or an errors and omissions insurance policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mort Accept Corp Commerc Mort Pass THR Cert Ser 1999 Cm1)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use ~~efforts~~ its reasonable best efforts, consistent with the Servicing ~~Standard to~~ Standard, cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances ~~and~~ to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and ~~windstorm~~ hurricane insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan ~~Document~~Document or, if the Mortgage Loan expressly permits a shorter period, such shorter period) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan~~ Loan. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Serviced Companion Loan;~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, if in each such case, such obligation will be subject to the ~~Loan Documents~~ provisions of this Agreement concerning Nonrecoverable Advances and to the availability of such insurance at commercially reasonable rates. The Special Servicer shall maintain, with respect to ~~any CREFI Mortgage Loan permit~~ each REO Property (i) public liability insurance providing such coverage against such risks as the ~~related Mortgagor to maintain~~Special Servicer determines, consistent with ~~the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in~~ the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, ~~permit~~ to be in the ~~related Mortgagor to maintain~~ best interests of the Trust Fund, (ii) insurance providing coverage against 18 months (or such longer period of time as is consistent with ~~an insurer that does not meet the requirements of~~ the Loan Documents ~~so long~~ and the Servicing Standard) of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”~~Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination and is required to be maintained pursuant to the terms of the Mortgage ~~Loan or Serviced Loan Combination~~Loan, the Master Servicer shall use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place on the Closing Date and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions hereof relating to Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Depositor and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer or Special Servicer as a Property Advance and shall be reimbursable to the Master Servicer or Special Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee, or the Master Servicer or the Special Servicer on behalf of the Trustee, as the mortgagee, as loss payee, and, unless otherwise required under the related Loan Documents, or with respect to insurance maintained by a Borrower, otherwise expressly permitted at the Borrower's election, shall be issued by Qualified Insurers. Notwithstanding the foregoing, the Borrowers under the 000 Xxxxx Xxxxxx Loan, the Westshore Mall Loan, the Yorktown Shopping Center Loan, and the Westgate Mall Loan shall, subject to Section 3.25(o) hereof, be permitted to maintain property and rental loss insurance with insurers other than Qualified Insurers, so long as (i) such insurance is maintained with the same insurers as have issued such insurance to such Borrower on the Cut-Off Date, as set forth in the "Current Insurance Schedule" included as Exhibit J hereto, (ii) such insurance is maintained with such insurers only to the same extent as was maintained on the Cut-Off Date, as set forth in Exhibit J hereto, and (iii) such insurers maintain ratings from S&P and Best at least as high as their ratings from S&P and Best on the Cut-Off Date, as set forth in Exhibit J hereto. (I) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required or permitted to be required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (iA) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ from a Qualified Insurer with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (ai) ~~one hundred percent (~~100%) % of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bii) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such ~~greater~~ other amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-~~insurer and provided such policy shall include~~ insurer, in each case with a “replacement ~~cost”~~ cost rider, (iiB) insurance providing coverage against 18 months ~~(or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document)~~ of rent interruptions and (~~iii~~C) such other insurance ~~as is required in the related Mortgage Loan and the related Serviced Companion Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to~~ (including public liability insurance). The Special Servicer shall maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable ~~rates~~ rates, fire and hazard insurance from a Qualified Insurer with extended coverage on each REO Property in an amount which is at least equal to 100% of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. The Special Servicer shall maintain, to the extent available at commercially reasonable rates, from a Qualified Insurer, with respect to each REO Property (A) public liability insurance providing such coverage against such risks as ~~determined by~~ the Special Servicer ~~in accordance~~ determines, consistent with the related Mortgage and the Servicing Standard), to be in the best interests of the Trust Fund, and shall cause to be maintained ~~for~~ with respect to each REO Property (B) insurance providing coverage against 18 months of rent interruptions, and (C) such other ~~than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously~~ insurance, in each case as required ~~of the Mortgagor under~~ in the related Mortgage Loan ~~Documents (except~~ Documents. In the case of any insurance otherwise required to be maintained pursuant to this section that is not being so maintained because the ~~extent~~ Master Servicer or the Special Servicer, as applicable, has deemed that ~~the failure to maintain such insurance coverage~~ it is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”not available at commercially reasonable rates, the Master Servicer ~~may, without a Rating Agency Confirmation~~ or ~~the approval of~~ the Special Servicer, as applicable, shall deliver an Officer's Certificate to the ~~extent consistent with~~ Trustee detailing the ~~Servicing Standard~~steps that the Master Servicer or the Special Servicer, ~~permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long~~ as ~~the related Mortgagor maintains insurance with an insurer rated at least as indicated~~ applicable, took in the definition of “Qualified Insurer”. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering seeking such insurance ~~at commercially reasonable rates~~and the factors which led to its determination that such insurance is not so available. Any amounts collected by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, under any such policies (other than amounts ~~required~~ to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.5, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.6. Any cost incurred by the Master ~~Servicer or the Special~~ Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no earthquake or other additional insurance other than flood insurance ~~or earthquake insurance subject to the conditions set forth below~~ is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer or the Special Servicer other than pursuant to the terms of the related Mortgage Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property ~~(other than an REO Property and other than with respect to an Outside Serviced Mortgage Loan)~~ is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent~~ in accordance with the Servicing Standard to cause the related ~~Mortgagor~~ Borrower to maintain, ~~to the extent required by each Serviced Loan, and if the related Mortgagor does not so maintain, shall~~ or will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances~~) and maintain~~ ), flood insurance in respect ~~thereof~~thereof to the extent available at commercially reasonable rates, to the extent required under the related Mortgage Loan Documents. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan) (i)~~ is located in a federally designated special flood hazard area or (ii) is related to a Serviced Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable ratesarea, the Special Servicer will obtain ~~(subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain~~ flood ~~insurance and/or earthquake~~ insurance in respect thereof providing substantially the same coverage as described in the preceding sentences. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the servicing standard set forth in Section ~~3.08(a~~3.1(a); provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. ~~Out-of-pocket expenses incurred by~~ Costs to the Master Servicer ~~or Special Servicer in~~ of maintaining insurance policies pursuant to this Section ~~3.08~~ 3.8 shall be ~~advanced~~ paid by the Master Servicer as a ~~Property~~ Servicing Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.8 shall be paid and reimbursed in accordance with Section 3.17(b). The Master ~~Servicer (or~~ Servicer, with respect to Mortgage Loans, and the Special Servicer, with respect to REO Properties~~) agrees~~ , agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance ~~policy~~ policy, including without limitation, environmental insurance policies, maintained ~~by it~~ pursuant to this Section ~~3.08(a~~3.8(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. The Master Servicer (or with respect to any REO Property, the Special Servicer) shall require that all insurance policies required hereunder shall name the Trustee or the Master Servicer (or with respect to any REO Property, the Special Servicer), on behalf of the Trustee as the mortgagee, as loss payee and that all such insurance policies require that 30 days' notice be given to the Master Servicer before termination to the extent required by the related Mortgage Loan Documents. (i) If the Master Servicer or Special Servicer, as applicable, obtains and maintains a blanket insurance policy with a Qualified Insurer at its own expense insuring against fire and hazard losses, 18-month rent interruptions or other required insurance on all of the Mortgage Loans, it shall conclusively be deemed to have satisfied its obligations concerning the maintenance of such insurance coverage set forth in Section 3.8(a), it being understood and agreed that such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on one or more of the related Mortgaged Properties a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (ii) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, which policy is issued by a Qualified Insurer and provides no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.8(a), the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its obligations to maintain insurance pursuant to Section 3.8(a). Such policy may contain a deductible clause, in which case the Master Servicer or Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.8(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) Each of the Master Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. The Master Servicer or the Special Servicer, as applicable, shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, each of the Master Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage loan servicers. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.8(c) shall be issued by a Qualified Insurer. Notwithstanding the foregoing, so long as the long-term unsecured debt obligations of the Master Servicer or Special Servicer, as applicable, or its respective corporate parent have been rated "A" or better by DCR or "A2" or better by Xxxxx'x (or such lower rating for which Rating Agency Confirmation has been obtained), the Master Servicer or Special Servicer, as applicable, shall be entitled to provide self-insurance or obtain from its respective corporate parent adequate insurance, as applicable, with respect to its obligation hereunder to maintain a fidelity bond or an errors and omissions insurance policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Acceptance Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master Servicer~~ Servicer, on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage ~~Loan and the related Serviced Companion Loan(s)~~ Loan, or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed ~~to be~~ a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 12 months (of rent interruptions or such longer period or with such extended period endorsement as provided in the related Mortgage or other ~~Loan Document) of rent interruptions~~ loan document and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan~~; provided that~~, ~~if the Loan Documents~~ provided, that with respect to ~~any CREFI~~ the three largest loans as of the Cut-off Date, the Servicer shall in all cases cause the related Borrower to maintain for all Mortgage Loans (other than REO Mortgage Loans), and if the Borrower does not maintain the Servicer shall maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) at least the insurance coverage as required under their respective Mortgage Loan ~~permit~~ Documents. All insurance referred to above for Mortgaged Properties shall be from a Qualified Insurer. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the ~~related Mortgagor~~ provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to ~~maintain~~one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”footings and excavation costs), ~~the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy~~without deduction for physical depreciation. ~~Subject to Section 3.16 of this Agreement,~~ If the Special Servicer does not maintain the insurance described in ~~accordance with~~ the ~~Servicing Standard~~ preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Servicer does not maintain such insurance to the extent available at commercially reasonable ~~rates~~ rates, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related Borrower fails to maintain such insurance), the Trustee shall, as ~~determined by~~ soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, in each such case, such obligation will be subject to the provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer ~~in accordance~~ shall maintain, with ~~the Servicing Standard), shall cause~~ respect to ~~be maintained for~~ each REO Property (~~other than an REO Property related to an Outside Serviced Mortgage Loan~~i) ~~no less~~ public liability insurance providing such coverage ~~than was previously required of~~ against such risks as the ~~Mortgagor under~~ Special Servicer determines, consistent with the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 12 months of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor~~ Mortgage Loan, provided, that with respect to ~~maintain insurance with~~ an ~~insurer that does not meet the requirements~~ REO Property which as of the ~~Loan Documents so long as~~ Cut-off Date was one of the ~~related Mortgagor maintains insurance with an insurer rated~~ three largest loans, the Special Servicer shall in all cases maintain at least ~~as indicated in~~ the ~~definition of “Qualified Insurer”~~insurance coverage required under their respective Mortgage Loan Documents. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage or Note or other document in the Mortgage File or in accordance with the Servicing Standard) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master Servicer~~ Servicer, Special Servicer, Trustee or ~~the Special Servicer~~ Fiscal Agent in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, and the ~~Master Servicer will use efforts consistent~~ Servicer, in performing its obligations hereunder in accordance with the Servicing ~~Standard~~ Standard, is aware of such location, the Servicer shall use its reasonable efforts to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances~~) and maintain~~ ), to the extent available at commercially reasonable rates, flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related ~~Mortgage Loan or Serviced Loan Combination and as is~~ Mortgage, in either case, to the extent available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (and direct the Servicer to advance amounts in order to obtain, subject to the provisions of this Agreement concerning Nonrecoverable Advances and the second paragraph of Section 3.04(a)) flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard or earthquake insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and ~~maintain flood~~ repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance ~~and/or earthquake~~ proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance ~~in respect thereof providing the same coverage as described in~~ otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the ~~Master~~ Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 and any costs of obtaining a confirmation from Fitch, S&P and Xxxxx'x as contemplated below shall be ~~advanced~~ paid by the ~~Master~~ Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The ~~Master~~ Special Servicer agrees that it will notify the Servicer of any change of any insurer of any Mortgaged Property or any other change with respect to the insurance coverage of any Mortgaged Property, to the extent it becomes aware of such change. Each of the Servicer (or the Special Servicer, with respect to the Specially Serviced Mortgage Loans and REO Properties) ), agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name (i) the Trustee or (ii) the Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. Any determination made by the Servicer or the Special Servicer that insurance is not commercially reasonably available shall be subject to confirmation by Fitch, S&P and Xxxxx'x that such determination not to purchase such insurance will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Certificates rated by Fitch, S&P and Xxxxx'x, provided that the Servicer and the Special Servicer shall not be required to maintain such insurance while Fitch, S&P and Xxxxx'x consider such determination. Further, provided that if the Rating Agencies require the maintenance of insurance the costs to the Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.08 and any costs of obtaining a confirmation from Fitch, S&P and Xxxxx'x as contemplated below shall be paid by the Servicer as a Property Advance and shall be reimbursable to the Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer and the Special Servicer, as applicable. In addition, the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer or the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer or the Special Servicer, as applicable, pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset Securitization Corp Com Mor Ps THR Cert Ser 1999-C2)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the ~~Trustee~~Trustee and if a Loan Pair is involved, on behalf of the related Companion Holder, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan and Companion Loan (other than ~~an Outside Serviced Mortgage Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~REO Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (paid as a Property Advance, and subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on ~~the~~ each related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or Loan Pair, or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed ~~to be~~ a co-~~insurer and provided such policy shall include a “replacement cost” rider~~insurer, (ii) insurance providing coverage against 18 at least 12 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of ~~rent~~ business interruptions (or in the case of an REO Property at least 24 months) and (iii) such other insurance as is required in the related Mortgage Loan or Companion Loan and ~~the related Serviced Companion Loan~~customarily obtained at commercially reasonable rates; provided that, if and to the extent that a Mortgage Loan ~~Documents~~ or Companion Loan so permits, the related Borrower or the Servicer as described above shall be required to exercise its best efforts to obtain the required insurance coverage from a Qualified Insurer. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) as described above. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, provided that, in each such case, such obligation will be subject to the provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the Special Servicer determines, consistent with the related Mortgage and the Servicing Standard, to be in the best interests of the Trust Fund and with respect to any ~~CREFI~~ Loan Pair, the related Companion Holder, as a collective whole, (ii) insurance providing coverage against 24 months of business interruptions and (iii) such other insurance as is required pursuant to the terms of the related Mortgage Loan ~~permit the related Mortgagor to maintain, with the lender’s consent~~ or ~~agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related~~ Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, permit the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Pair. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master~~ Servicer or ~~the~~ Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to Certificateholders ~~and the Uncertificated VRR Interest Owners~~or Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Loan Pair so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance (subject to the conditions set forth ~~below~~ below) is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ improvements on the Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is are located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced Loan~~Mortgage Loan or Loan Pair, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s) and~~ or Loan Pair, (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the ~~national~~ National Flood Insurance Act of 1968, as amended, if available and (iii) 100% of the replacement cost of the improvements located in the special flood ~~insurance program (assuming~~ hazard area on the related Mortgaged Property, except to the extent that ~~the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake~~ self-insurance is ~~required to be maintained pursuant to~~ permitted under the ~~terms of the~~ related Mortgage Loan or ~~Serviced~~ Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at originationPair. If an REO Property (~~other than an REO Property related to the Outside Serviced Mortgage Loan) (~~i) is located in ~~a federally designated~~ an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood ~~hazard area~~ hazards or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ or Loan Pair pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or Loan Pair or, if not specified, in place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a). Out-of-pocket expenses incurred by~~ that is not being so maintained because the ~~Master~~ Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Bond Administrator, each Rating Agency, the Directing Certificateholder and the related Companion Holder (or Operating Advisor acting on its behalf) which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Costs to the Servicer or the Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer or the Special Servicer, as applicable, as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer or the Special Servicer, with interest at the Advance Rate, which reimbursement shall be effected under Section 3.06(d)(ii), Section 3.06(d)(iii) and Section 3.06(d)(vii) and Section 3.06(e)(ii), Section 3.06(e)(iii) and Section 3.06(e)(vii), if applicable. The ~~Master~~ Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Loans) agrees to prepare and present, on behalf of itself, the Trustee and the ~~Certificateholders, the Uncertificated VRR Interest Owners~~ Certificateholders and the ~~Serviced~~ related Companion ~~Loan~~ Holders, claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Servicer or the Special Servicer, on behalf of the Trustee and with respect to a Loan Pair, the related Companion Holder, as the mortgagee, as loss payee. In the case of the Mortgage Loans identified on the Mortgage Loan Schedule as Loan Nos. 72, 94, 104 and 105, the Servicer shall review the terms and conditions of the environmental insurance policies obtained from an affiliate of American International Group, Inc. with respect to such Mortgage Loans and shall submit any claims under such policies in accordance with the requirements contained in such policies. (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket or mortgage impairment insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or Loan Pair or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses that would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan or Loan Pair, or, in the absence of any such deductible limitation, the deductible limitation that is consistent with the Servicing Standard. In connection with its activities as Servicer or the Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee, Certificateholders and if a Loan Pair is involved, the related Companion Holder, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses that would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan or Loan Pair, or, in the absence of any such deductible limitation, the deductible limitation that is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer and the Special Servicer, as applicable. In addition, the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans and Companion Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee and if a Loan Pair is involved, the related Companion Holder (with respect to its Companion Loan) named as loss payee (as their interests may appear). The Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy that satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Deutsche Mortgage & Asset Receiving Corp Series 2000-C1)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances ~~and~~ to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and ~~windstorm~~ hurricane insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan~~ Loan. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Serviced Companion Loan;~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, if in each such case, such obligation will be subject to the ~~Loan Documents~~ provisions of this Agreement concerning Nonrecoverable Advances and to the availability of such insurance at commercially reasonable rates. The Special Servicer shall maintain, with respect to ~~any CREFI Mortgage Loan permit~~ each REO Property (i) public liability insurance providing such coverage against such risks as the ~~related Mortgagor to maintain~~Special Servicer determines, consistent with ~~the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in~~ the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, ~~permit~~ to be in the ~~related Mortgagor to maintain~~ best interests of the Trust Fund, (ii) insurance providing coverage against 18 months (or such longer period of time as is consistent with ~~an insurer that does not meet the requirements of~~ the Loan Documents ~~so long~~ and the Servicing Standard) of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”~~Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination, is required to be maintained pursuant to the terms of the Mortgage ~~Loan or Serviced Loan Combination~~Loan, the Master Servicer shall use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions hereof relating to Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Seller and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer or Special Servicer as a Property Advance and shall be reimbursable to the Master Servicer or Special Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and, unless otherwise required under the related Loan Documents, shall be issued by Qualified Insurers. (I) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans and the Montehiedra Partner Loans hereunder in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan and the Montehiedra Partner Loans on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c); provided, however, that with respect to Banco Popular de Puerto Rico so long as it is acting as the sub-servicer with respect to the Montehiedra Loan, such fidelity bond and policies of errors and omissions insurance shall be in an amount, form, and issued by an insurer, that meets the requirements of FNMA. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) (other than with respect to Banco Popular de Puerto Rico in its capacity as the sub-servicer of the Montehiedra Loan) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Ii Series 1997-Gl I)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed ~~to be~~ a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other ~~Loan Document~~loan document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master . The Special Servicer shall ~~not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation~~ maintain fire and hazard insurance with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for extended coverage on each REO Property (~~other than~~ subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an ~~REO Property related~~ amount which is at least equal to ~~an Outside Serviced Mortgage Loan~~one hundred percent (100%) ~~no less insurance coverage than was previously required~~ of the ~~Mortgagor under~~ then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Loan Documents (except to the extent that the failure~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance ~~coverage is an Acceptable Insurance Default);~~ and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided ~~that~~ that, in each such case, such obligation will be subject to the ~~extent~~ provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the ~~Loan Documents require~~ Special Servicer determines, consistent with the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 24 months of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master Servicer~~ Servicer, Special Servicer, Trustee or ~~the Special Servicer~~ Fiscal Agent in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the ~~Master~~ Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer or Special Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer or Special Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The ~~Master~~ Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. Any determination made by the Servicer or Special Servicer that insurance is not commercially reasonably available shall be subject to confirmation by Fitch that such determination not to purchase such insurance will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Certificates rated by Fitch. (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or the Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer and the Special Servicer, as applicable. In addition, the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Asset Securitization Corp Comm Mort Pass THR Cer Ser 1997-D4)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 12 months (or such longer period ~~or with such extended period endorsement~~ as provided in the related Mortgage or other ~~Loan Document~~loan document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master . The Special Servicer shall ~~not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation~~ maintain fire and hazard insurance with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for extended coverage on each REO Property (~~other than~~ subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an ~~REO Property related~~ amount which is at least equal to ~~an Outside Serviced Mortgage Loan~~one hundred percent (100%) ~~no less insurance coverage than was previously required~~ of the ~~Mortgagor under~~ then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Loan Documents (except to the extent that the failure~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance ~~coverage is an Acceptable Insurance Default);~~ and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided ~~that~~ that, in each such case, such obligation will be subject to the ~~extent~~ provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the ~~Loan Documents require~~ Special Servicer determines, consistent with the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 24 months of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement~~3.05, ~~as applicable,~~ - 66 - 73 subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master~~ Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake insurance is required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan or Serviced Loan Combination or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in-place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a)~~that is not being so maintained because the Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officer's Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. ~~Out-of-pocket expenses incurred by~~ Costs to the ~~Master~~ Servicer or Special Servicer in of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer or Special Servicer as a Property Advance and shall be reimbursable to the ~~Master~~ Servicer or Special Servicer with interest at the Advance Rate, which reimbursement may be effected under Section 3.06(ii) or (vii). The ~~Master~~ Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in All insurance policies required hereunder shall name the Trustee or the Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Servicer or the Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to ~~permit recovery~~be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers. The Servicer and the Special Servicer each shall be deemed to have

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Amresco Commercial Mortgage Funding I Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The ~~Master~~ Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall ~~use efforts consistent with the Servicing Standard to~~ cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable ~~Advances and~~ Advances) to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance ~~(and windstorm insurance, if applicable)~~ with extended coverage on ~~the~~ each related Mortgaged Property in an amount which is at least equal to the lesser of (aA) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (bB) the outstanding principal balance of the related Mortgage ~~Loan and the related Serviced Companion Loan(s)~~ Loan, or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance ~~provisions~~ and to prevent the Trustee thereunder from being deemed ~~to be~~ a co-~~insurer and provided such policy shall include a “replacement cost” rider~~insurer, (ii) insurance providing coverage against 18 at least 6 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other ~~Loan Document~~loan document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan and the related Serviced Companion~~ Loan; provided that, if the Loan Documents with respect to any CREFI Mortgage Loan permit the related Mortgagor to maintain, with the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent ~~available at commercially reasonable rates (~~that a Mortgage Loan so permits, the related Borrower or the Servicer as ~~determined by~~ described above shall be required to exercise its best efforts to obtain the required insurance coverage from a Qualified Insurer. The Special Servicer ~~in accordance~~ shall maintain fire and hazard insurance with ~~the Servicing Standard), shall cause to be maintained for~~ extended coverage on each REO Property (~~other than an REO Property related~~ subject to ~~an Outside Serviced Mortgage Loan~~the provisions of this Agreement concerning Nonrecoverable Advances) ~~no less~~ as described above. If the Special Servicer does not maintain the insurance ~~coverage than was previously~~ described in the preceding sentence or the required flood insurance described below, the Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the ~~Mortgagor under~~ Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Loan Documents (except to the extent that the failure~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance ~~coverage is an Acceptable Insurance Default);~~ and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided ~~that~~ that, in each such case, such obligation will be subject to the ~~extent~~ provisions of this Agreement concerning Nonrecoverable Advances. The Special Servicer shall maintain, with respect to each REO Property (i) public liability insurance providing such coverage against such risks as the ~~Loan Documents require~~ Special Servicer determines, consistent with the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with Mortgage and the Servicing Standard, ~~permit~~ to be in the best interests of the Trust Fund, (ii) insurance providing coverage against 24 months of rent interruptions and (iii) such other insurance as is required pursuant to the terms of the related Mortgagor to maintain insurance with an insurer that does not meet the requirements of the Loan Documents so long as the related Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the ~~Master~~ Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related ~~Loan Documents~~Mortgage) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the ~~Master Servicer~~ Servicer, Special Servicer, Trustee or ~~the Special Servicer~~ Fiscal Agent in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance (subject to the conditions set forth ~~below~~ below) is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the ~~Master~~ Servicer other than pursuant to the terms of the related ~~Loan Documents~~ Mortgage and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ improvements on the Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is are located in a federally designated special flood hazard area, the ~~Master~~ Servicer will use its best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, ~~shall~~ will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage ~~Loan and the related Serviced Companion Loan(s) and~~ Loan, (ii) the maximum amount of such insurance required by the terms of the related Mortgage ~~Loan or Serviced Loan Combination~~ and as is available for the related property under the ~~national~~ National Flood Insurance Act of 1968, as amended, if available and (iii) 100% of the replacement cost of the improvements located in the special flood ~~insurance program (assuming~~ hazard area on the related Mortgaged Property, except to the extent that ~~the area in which such property is located is participating in such program). If a Mortgaged Property (other than an REO Property) is related to a Serviced Loan pursuant to which earthquake~~ self-insurance is ~~required to be maintained pursuant to the terms of the Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use efforts consistent with the Servicing Standard to cause~~ permitted under the related Mortgagor to maintain, and if the related Mortgagor does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage ~~Loan or Serviced Loan Combination or, if not specified, in-place at origination~~Loan. If an REO Property (~~other than an REO Property related to the Outside Serviced Mortgage Loan) (~~i) is located in ~~a federally designated~~ an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood ~~hazard area~~ hazards or (ii) is related to a ~~Serviced~~ Mortgage Loan ~~with respect~~ pursuant to which earthquake insurance ~~would~~ was in place at the time of origination and continues to be ~~appropriate in accordance with the Servicing Standard and such insurance is~~ available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) ~~and maintain~~ flood insurance and/or earthquake insurance in respect thereof providing substantially the same coverage as described in the preceding sentences or, with respect to earthquake insurance, in the amount required by the Mortgage Loan or, if not specified, in place at origination. If at any time during the term of this Agreement a recovery under a flood or fire and hazard insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions of this Agreement concerning Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained pursuant to this Section ~~3.08(a). Out-of-pocket expenses incurred by~~ that is not being so maintained because the ~~Master~~ Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Costs to the Servicer, Special Servicer, the Trustee or the Fiscal Agent of maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the ~~Master~~ Servicer or Special Servicer as a Property Advance and shall be reimbursable to the ~~Master Servicer~~ Servicer, Special Servicer, the Trustee or the Fiscal Agent with interest at the Advance Rate, which reimbursement shall be effected under Section 3.06(ii). The ~~Master~~ Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee. (I) If the Servicer or the Special Servicer, as applicable, obtains and maintains a blanket or mortgage impairment insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses that would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation that is consistent with the Servicing Standard. In connection with its activities as Servicer or the Special Servicer hereunder, as applicable, the Servicer or the Special Servicer, respectively, agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (II) If the Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy, such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a) in which case the Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses that would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation that is consistent with the Servicing Standard. (c) The Servicer and the Special Servicer shall maintain a fidelity bond in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Servicer and the Special Servicer, as applicable. In addition, the Servicer and the Special Servicer shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of prudent institutional commercial mortgage lenders and loan servicers with the Trustee named as loss payee. The Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy that satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Deutsche Mortgage & Asset Receiving Corp)

Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) The Master Servicer on behalf of the Trustee, as ~~mortgagee of record~~mortgagee, shall use reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each Mortgage Loan (other than ~~an Outside Serviced~~ REO Mortgage ~~Loan) and each Serviced Companion Loan (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default~~Loans), and if the ~~Mortgagor~~ Borrower does not so maintain, shall itself maintain (subject to the provisions of this Agreement concerning Nonrecoverable Advances ~~and~~ to the extent the Trustee as mortgagee ~~of record~~ has an insurable interest and to the extent available at commercially reasonable rates), (i) fire and hazard insurance (and ~~windstorm~~ hurricane insurance, if applicable) with extended coverage on the related Mortgaged Property in an amount which is at least equal to the lesser of (a) one hundred percent (100%) of the then “"full replacement cost” " of the improvements and ~~equipment~~ equipment, (excluding foundations, footings and excavation costs), without deduction for physical depreciation, and (b) the outstanding principal balance of the related Mortgage Loan ~~and the related Serviced Companion Loan(s)~~ or such greater amount as is necessary to prevent any reduction in such policy by reason of the application of co-insurance provisions and to prevent the Trustee thereunder from being deemed to be a co-insurer and provided such policy shall include a “"replacement cost” " rider, (ii) insurance providing coverage against 18 months (or such longer period or with such extended period endorsement as provided in the related Mortgage or other Loan Document) of rent interruptions and (iii) such other insurance as is required in the related Mortgage ~~Loan~~ Loan. The Special Servicer shall maintain fire and hazard insurance with extended coverage on each REO Property (subject to the provisions of this Agreement concerning Nonrecoverable Advances) in an amount which is at least equal to one hundred percent (100%) of the then "full replacement cost" of the improvements and equipment (excluding foundations, footings and excavation costs), without deduction for physical depreciation. If the Special Servicer does not maintain the insurance described in the preceding sentence or the required flood insurance described below, the Master Servicer shall, as soon as practicable after receipt of notice of such failure, maintain such insurance, and if the Master Servicer does not maintain such insurance, the insurance required in the first sentence of this Section 3.08(a) or the required flood insurance described below (if the related ~~Serviced Companion Loan;~~ Borrower fails to maintain such insurance), the Trustee shall, as soon as practicable after receipt of notice of such failure, maintain such insurance and if the Trustee does not maintain such insurance, the Fiscal Agent shall do so, provided that, if in each such case, such obligation will be subject to the ~~Loan Documents~~ provisions of this Agreement concerning Nonrecoverable Advances and to the availability of such insurance at commercially reasonable rates. The Special Servicer shall maintain, with respect to ~~any CREFI Mortgage Loan permit~~ each REO Property (i) public liability insurance providing such coverage against such risks as the ~~related Mortgagor to maintain~~Special Servicer determines, consistent with ~~the lender’s consent or agreement, any insurance policy that (A) has coverages, deductibles and/or other related provisions other than those specified in~~ the related Loan Documents or (B) is provided by an insurer that does not meet the credit ratings requirements set forth in the related Loan Documents (any such insurance policy, a “Non-Conforming Policy”), the Master Servicer shall not consent or agree to such Non-Conforming Policy unless the Master Servicer has received a Rating Agency Confirmation with respect to such Non-Conforming Policy. Subject to Section 3.16 of this Agreement, the Special Servicer in accordance with the Servicing Standard and to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard), shall cause to be maintained for each REO Property (other than an REO Property related to an Outside Serviced Mortgage Loan) no less insurance coverage than was previously required of the Mortgagor under the related Loan Documents (except to the extent that the failure to maintain such insurance coverage is an Acceptable Insurance Default); provided that to the extent the Loan Documents require the related Mortgagor to maintain insurance with an insurer rated better than as indicated in the definition of “Qualified Insurer”, the Master Servicer may, without a Rating Agency Confirmation or the approval of the Special Servicer, to the extent consistent with the Servicing Standard, ~~permit~~ to be in the ~~related Mortgagor to maintain~~ best interests of the Trust Fund, (ii) insurance providing coverage against 18 months (or such longer period of time as is consistent with ~~an insurer that does not meet the requirements of~~ the Loan Documents ~~so long~~ and the Servicing Standard) of rent interruptions and (iii) such other insurance as was required pursuant to the terms of the related ~~Mortgagor maintains insurance with an insurer rated at least as indicated in the definition of “Qualified Insurer”~~Mortgage Loan. All insurance for an REO Property shall be from a Qualified Insurer, if available from a Qualified Insurer, and if not available from a Qualified Insurer, from an insurance provider that is rated the next highest available rating who is offering such insurance at commercially reasonable rates. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts required to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the ~~Mortgagor~~ Borrower in accordance with the terms of the related Loan Documents) shall be deposited into the Collection Account pursuant to Section ~~3.05 of this Agreement or the Loan Combination Custodial Account pursuant to Section 3.05A of this Agreement, as applicable~~3.05, subject to withdrawal pursuant to Section ~~3.05, Section 3.05A, Section 3.06 or Section 3.06A of this Agreement~~3.06. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for the purpose of calculating distributions to ~~Certificateholders and the Uncertificated VRR Interest Owners~~Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. It is understood and agreed that no other additional insurance other than flood insurance or earthquake insurance subject to the conditions set forth below is to be required of any ~~Mortgagor~~ Borrower or to be maintained by the Master Servicer other than pursuant to the terms of the related Loan Documents and pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance. If the ~~related~~ Mortgaged Property (other than an REO ~~Property and other than with respect to an Outside Serviced Mortgage Loan~~Property) is located in a federally designated special flood hazard area, the Master Servicer will use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, to the extent required by each ~~Serviced~~ Mortgage Loan, and if the related ~~Mortgagor~~ Borrower does not so maintain, shall itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance in respect thereof. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan and ~~the related Serviced Companion Loan(s) and~~ (ii) the maximum amount of such insurance required by the terms of the related Mortgage Loan ~~or Serviced Loan Combination~~ and as is available for the related property under the national flood insurance program (assuming that the area in which such property is located is participating in such program). If a Mortgaged Property ~~(other than an REO Property)~~ is related to a ~~Serviced~~ Mortgage Loan pursuant to which earthquake insurance was in place at the time of origination, is required to be maintained pursuant to the terms of the Mortgage ~~Loan or Serviced Loan Combination~~Loan, the Master Servicer shall use its reasonable best efforts ~~consistent with the Servicing Standard~~ to cause the related ~~Mortgagor~~ Borrower to maintain, and if the related ~~Mortgagor~~ Borrower does not so maintain will itself obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances and for so long as such insurance continues to be available at commercially reasonable rates) and maintain earthquake insurance in respect thereof, in the amount required by the Mortgage Loan ~~or Serviced Loan Combination~~ or, if not specified, in-place at origination. If an REO Property ~~(other than an REO Property related to the Outside Serviced Mortgage Loan)~~ (i) is located in a federally designated special flood hazard area or (ii) is related to a ~~Serviced~~ Mortgage Loan with respect to which earthquake insurance would be appropriate in accordance with the Servicing Standard and such insurance is available at commercially reasonable rates, the Special Servicer will obtain (subject to the provisions of this Agreement concerning Nonrecoverable Advances) and maintain flood insurance and/or earthquake insurance in respect thereof providing the same coverage as described in this Section 3.08(a). If at any time during the term of this Agreement a recovery under an insurance policy in respect of an REO Property is not available but would have been available if such insurance were maintained thereon in accordance with the standards applied to Mortgaged Properties described herein, the Special Servicer shall (subject to the provisions hereof relating to Nonrecoverable Advances) either (i) immediately deposit into the Collection Account from its own funds the amount that would have been recovered or (ii) apply to the restoration and repair of the property from its own funds the amount that would have been recovered, if such application would be consistent with the Servicing Standard; provided, however, that the Special Servicer shall not be responsible for any shortfall in insurance proceeds resulting from an insurer's refusal or inability to pay a claim. In the case of any insurance otherwise required to be maintained by the Master Servicer or the Special Servicer, as applicable, that is not being so maintained because the Master Servicer or the Special Servicer, as applicable, has determined that it is not available at commercially reasonable rates, the Master Servicer or the Special Servicer, as applicable, shall deliver an Officers' Certificate to the Trustee, the Seller and each Rating Agency which details the steps that were taken in seeking such insurance and the factors which led to the determination that such insurance was not so available. Out-of-pocket expenses incurred by the Master Servicer or Special Servicer in maintaining insurance policies pursuant to this Section 3.08 shall be ~~advanced~~ paid by the Master Servicer as a Property Advance and shall be reimbursable to the Master Servicer with interest at the Advance Rate. The Master Servicer (or the Special Servicer, with respect to ~~REO Properties~~the Specially Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, ~~the Uncertificated VRR Interest Owners and the Serviced Companion Loan Holders,~~ claims under each related insurance policy maintained ~~by it~~ pursuant to this Section 3.08(a) in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or to permit ~~recovery~~recovery thereunder. All insurance policies required hereunder shall name the Trustee or the Master Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as loss payee, and, unless otherwise required under the related Loan Documents, shall be issued by Qualified Insurers. (i) If the Master Servicer or the Special Servicer, as applicable, obtains and maintains a blanket insurance policy insuring against fire and hazard losses on all of the Mortgaged Properties (other than REO Properties) as to which the related Borrower has not maintained insurance required by the related Mortgage Loan or on all of the REO Properties, as the case may be, it shall conclusively be deemed to have satisfied its respective obligations concerning the maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket insurance policy shall be maintained with a Qualified Insurer. A blanket insurance policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as Master Servicer or the Special Servicer hereunder, as applicable, the Master Servicer and the Special Servicer, respectively, agree to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy which it maintains in a timely fashion in accordance with the terms of such policy and to take such reasonable steps as are necessary to receive payment or permit recovery thereunder. (ii) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a master force placed insurance policy and such policy shall be issued by a Qualified Insurer and provide no less coverage in scope and amount for such Mortgaged Property or REO Property than the insurance required to be maintained pursuant to Section 3.08(a), then the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to maintain insurance pursuant to Section 3.08(a). Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall, in the event that (i) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.08(a), and (ii) there shall have been one or more losses which would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account from its own funds the amount not otherwise payable under such policy because of such deductible to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. (c) The Master Servicer and the Special Servicer shall each maintain a fidelity bond in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer each shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as applicable. In addition, the Master Servicer and the Special Servicer shall each keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations to service the Mortgage Loans hereunder in the form and amount that would meet the servicing requirements of FNMA or FHLMC, whichever is greater, with the Trustee named as certificateholder or loss payee, as applicable thereunder. The Master Servicer and the Special Servicer shall cause each and every sub-servicer for it to maintain, or cause to be maintained by any agent or contractor servicing any Mortgage Loan on behalf of such sub-servicer, a fidelity bond and an errors and omissions insurance policy which satisfy the requirements for the fidelity bond and the errors and omissions policy to be maintained by the Master Servicer pursuant to this Section 3.08(c). All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.08(c) shall be issued by a Qualified Insurer.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gs Mortgage Sec Corp Ii Comm Mort Pa Thro Cer Ser 1999-C1)

Common use of Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage Clause in Contracts