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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (COMM 2015-Lc19 Mortgage Trust), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C29), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Lc20)

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Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Managed Units) and the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Special Servicer (with respect to Specially Managed Units) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Tenant or Borrower to maintain (including identifying the extent to which a Borrower is maintaining for each Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Lease or Mortgage Loan Documents and is available at commercially reasonable rates and Loan, as applicable (including for the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Tenant or Borrower is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent , with a view towards requiring insurance comparable to that required under other similar leases or mortgage loans with express provisions governing such matters; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Tenant or Borrower shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide. If such Tenant or Borrower does not maintain the required insurance or, with respect to any Environmental Policy in each caseplace as of the related Series Closing Date or Transfer Date, have the Required Claims-Paying Ratings at the time Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Property is located or (ii) such insurance is not available at any rate. The Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less property insurance coverage than was previously required of the Tenant or Borrower under the related Mortgaged Mortgage or Lease and at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A-:VIII” by A.M. Best’s Key Rating Guide. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.06(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Properties that it is required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.06(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Property or REO Property to be covered by such blanket policy, the incremental costs of such insurance applicable to such Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance to the extent that, except with respect to an REO Property, such blanket policy provides insurance that the related Tenant or Borrower, as applicable, has failed to maintain. If the Property Manager or Special Servicer, as applicable, causes any Property or REO Property to be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to such Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Property or REO Property is located;covered thereby) shall be paid as a Property Protection Advance. Such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Property or REO Property a hazard insurance policy complying with the requirements of Section 3.06(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer. The Back-Up Manager (whether as Back-Up Manager, Property Manager or Special Servicer) shall at all times during the term of this Agreement maintain insurance in conformity with market requirements and shall keep in force with a Qualified Insurer having a claims paying ability rated by at least one of the following Rating Agencies of at least (a) “A3” by Xxxxx’x, (b) “A-” by S&P, (c) “A-” by Fitch or (d) “A:X” by A.M. Best Company, Inc., (i) a fidelity bond (employee dishonesty insurance) in such form and amount as is consistent with the Servicing Standard, and (ii) a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as is consistent with the Servicing Standard. The Back-Up Manager shall cause any awards or other amounts payable under such policy or policies that result from the errors or omissions of its officers and employees in connection with its servicing obligations hereunder to be promptly remitted to the Indenture Trustee for application in accordance with the Indenture. The Back-Up Manager shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond and/or errors and omissions coverage and, by the terms of such fidelity bond and/or errors and omissions policy, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) also, on behalf of each Issuer, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes without giving effect to any Insurance Policy (as evidenced in writing from each Rating Agency). Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A” by S&P, the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that STORE Capital may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 4 contracts

Samples: Eighth Amended and Restated Property Management and Servicing Agreement (Store Capital LLC), Property Management and Servicing Agreement (STORE CAPITAL Corp), Property Management and Servicing Agreement (STORE CAPITAL Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located; (E) the reasonable efforts of the Master Servicer to cause the Borrower under any Serviced Mortgage Loan to maintain insurance shall be conducted in a manner that takes into account the insurance that would then be available to the Master Servicer on a force-placed basis; and (F) to the extent the Master Servicer itself is required to maintain insurance that the Borrower under any Serviced Mortgage Loan does not maintain, the Master Servicer shall not be required to maintain insurance other than what is available to the Master Servicer on a force-placed basis (and this will not be construed to modify the other limits set forth in clause (D) above).

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C28), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C29), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to the case of each Mortgage Loans (other than a Non-Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Loan) and any related Companion Loan) shall use reasonable its efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or Special Servicer, as applicable). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Companion Loan) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined (prior to the occurrence and continuance of any Control Event, any determination that such insurance coverage is not available or not available at commercially reasonable rates to be made with the consent of the Directing Certificateholder) by the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Companion Loan) or the Trustee has an insurable interest; Special Servicer (Bwith respect to REO Properties other than any Non-Serviced Mortgaged Property) if and except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Special Servicer; provided, however, that if any Serviced Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder any discretion (by way of consent, approval or otherwise) as holder thereof to dictate to the Mortgagor the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as applicable, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) Standard taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, the Master Servicer will be obligated to use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the requisite Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Special Servicer with (unless a Control Event has occurred and is continuing) the consent of the Directing Certificateholder) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer and, if available, can be obtained at commercially reasonable rates. The Master Servicer and Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage from Qualified Insurers thatthan was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer (prior to the occurrence and continuance of a Control Event with Directing Certificateholder consent) determines that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) which case the Master Servicer shall have be entitled to conclusively rely on the Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Companion Loan, other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related Mortgage Loan (including any related Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without ten (10) days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer or Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation beyond using to do so, shall be advanced by the Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the Certificate Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the Certificate Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision to the contrary, the Master Servicer will not be required to maintain, and will not be in default for failing to obtain, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan and is currently available at commercially reasonable rates. Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Companion Loan that either (x) require the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan (including any related Companion Loan) reasonably requires from time to time in order to protect its reasonable interests, the Master Servicer will be required to, consistent with the Servicing Standard, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if it has knowledge that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based upon the Master Servicer’s compliance with the immediately preceding clauses (A) and (B) above) that any Mortgagor fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Special Servicer (at the Borrower under expense of the Trust) shall be entitled to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Special Servicer shall promptly deliver such conclusions in writing to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder, neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans (including any related Serviced Companion Loan, but excluding any Non-Serviced Mortgage Loan Loan) or REO Properties (other than with respect to maintain a Non-Serviced Mortgaged Property), as the insurance case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the lender is entitled individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to reasonably require, subject the extent that any such deductible exceeds the deductible limitation that pertained to applicable law, under the related Mortgage Loan Documents; (D) including any related Serviced Companion Loan), or in no event shall the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as administrator and Master Servicer of the Mortgage Loans, the Master Servicer be required agrees to cause prepare and present, on behalf of itself, the Borrower Trustee and Certificateholders, claims under any Serviced Mortgage Loan such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standard, may maintain, or itself obtainearthquake insurance on REO Properties (other than with respect to a Non-Serviced Mortgaged Property), insurance provided coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and rates, the related hazards are not at cost of which shall be a Servicing Advance. (ii) If the time commonly insured against at Master Servicer or the thenSpecial Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-available rates for properties similar placed insurance policy with a Qualified Insurer naming the Master Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Properties

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C18), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C14), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C14)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to the case of each Mortgage Loans (other than a Non-Serviced Mortgage Loan or Loan) and any related Serviced Loan Combination, the Master Servicer Companion Loan) shall use reasonable its efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or Special Servicer, as applicable). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined (prior to the occurrence and continuance of any Control Event, any determination that such insurance coverage is not available or not available at commercially reasonable rates to be made with the consent of the Directing Certificateholder) by the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Trustee has an insurable interest; Special Servicer (Bwith respect to REO Properties other than any Non-Serviced Mortgaged Property) if and except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Special Servicer; provided, however, that if any Serviced Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder any discretion (by way of consent, approval or otherwise) as holder thereof to dictate to the Mortgagor the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as applicable, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) Standard taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, the Master Servicer will be obligated to use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the requisite Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Special Servicer with (unless a Control Event has occurred and is continuing) the consent of the Directing Certificateholder) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer and, if available, can be obtained at commercially reasonable rates. The Master Servicer and Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage from Qualified Insurers thatthan was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) which case the Master Servicer shall have be entitled to conclusively rely on the Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without ten (10) days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer or Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced Companion Loan) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation beyond using to do so, shall be advanced by the Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the Certificate Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the Certificate Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision to the contrary, the Master Servicer will not be required to maintain, and will not be in default for failing to obtain, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan and is currently available at commercially reasonable rates. Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its reasonable interests, the Master Servicer will be required to, consistent with the Servicing Standard, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if it has knowledge that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based upon the Master Servicer’s compliance with the immediately preceding clauses (A) and (B) above) that any Mortgagor fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Special Servicer (at the Borrower under expense of the Trust) shall be entitled to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Special Servicer shall promptly deliver such conclusions in writing to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder, neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans (including any related Serviced Companion Loan, but excluding any Non-Serviced Mortgage Loan Loan) or REO Properties (other than with respect to maintain a Non-Serviced Mortgaged Property), as the insurance case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the lender is entitled individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to reasonably require, subject the extent that any such deductible exceeds the deductible limitation that pertained to applicable law, under the related Mortgage Loan Documents; (D) including any related Serviced Companion Loan), or in no event shall the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as administrator and Master Servicer of the Mortgage Loans and any Serviced Companion Loans, the Master Servicer be required agrees to cause prepare and present, on behalf of itself, the Borrower Trustee and Certificateholders, claims under any Serviced Mortgage Loan such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standard, may maintain, or itself obtainearthquake insurance on REO Properties (other than with respect to a Non-Serviced Mortgaged Property), insurance provided coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and rates, the related hazards are not at cost of which shall be a Servicing Advance. (ii) If the time commonly insured against at Master Servicer or the thenSpecial Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-available rates for properties similar placed insurance policy with a Qualified Insurer naming the Master Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Properties

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C18)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) that hereof), to the lender extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is entitled to reasonably require, required under the related Mortgage (subject to applicable law, under the related Mortgage Loan Documents); provided that all of if any Mortgage permits the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required holder thereof to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant dictate to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to Mortgagor the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) use efforts consistent with the Servicing Standard . The Special Servicer shall cause to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatbe maintained for each REO Property, in each case, have case with an insurer that possesses the Required Claims-Paying Ratings at the time such policy is purchased, no less insurance coverage is obtained;than was previously required of the related Mortgagor under the related Mortgage and, if the related Mortgage did not so require, hazard insurance, public liability (Ca) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Mortgagor has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have no satisfied its obligation beyond using its reasonable efforts to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the Borrower under any Serviced terms of the related Mortgage Loan documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount not otherwise payable under the master single interest policy because of such deductible clause, to maintain 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 at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a fidelity bond in such form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer of multifamily mortgage loaxx. Xxcx xf thx Xxxxxr Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Mortgage Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer of multifamily mortgage loaxx. Xxy such exxxxx xnd omissions policy, if required, shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. It is understood and agreed that the Rating Agencies have affirmed in writing that the use of certain specified insurance carriers by the Master Servicer, the Special Servicer and/or Sub-Servicers will not, in and of itself, cause a downgrade, qualification or change in the rating assigned to any Class of Certificates, notwithstanding that such insurance carriers do not possess the Required Claims-Paying Ratings as of the Closing Date. It is further understood and agreed that if the claims-paying ratings of any such insurance carrier are downgraded below the level assigned as of the Closing Date, such insurance carrier promptly shall be replaced by a Qualified Insurer that possesses the Required Claims-Paying Ratings. (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer (with respect to Mortgage Loans) or the Special Servicer (with respect to REO Properties) shall use reasonable its efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining required by the terms of the related Mortgage Note all insurance coverage as is required under the related Mortgage Loan except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default. If the Mortgagor does not so maintain such insurance coverage, the Master Servicer (with respect to Mortgage Loans) or the Special Servicer (with respect to REO Properties) shall maintain, for each Mortgage Loan all insurance coverage as is required under the related Mortgage and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined by the Master Servicer (or in the case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties, the Special Servicer) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Borrower does not so maintainMortgaged Property, the Master Servicer or the Special Servicer, as applicable, shall impose such insurance requirements as are consistent with the Servicing Standards taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, the Master Servicer will itself cause be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer and, if available, can be maintained with Qualified Insurers having obtained at commercially reasonable rates as determined by the Required Claims-Paying RatingsSpecial Servicer, provided that the Master Servicer shall be entitled to conclusively rely on such determination. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgaged Property Mortgage Loan and Companion Loan unless the Special Servicer, with Directing Certificateholder consent, determines that such insurance is not available at commercially reasonable rates, provided that the Master Servicer shall be entitled to conclusively rely on such determination. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall (xi) contain a fire "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans and casualty extended Companion Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to not less than the lesser of (ix) the full replacement cost of the improvements securing such Serviced Mortgage Loan Mortgaged Property or Serviced Loan Combination the REO Property, as applicable, or (iiy) the outstanding principal balance of such Serviced owing on the related Mortgage Loan, Companion Loan or Serviced Loan CombinationREO Loan, butas applicable, and in any event, in an the amount sufficient necessary to avoid the application operation of any co-insurance clause and provisions, (yiv) all other insurance coverage include a replacement cost endorsement providing no deduction for depreciation (including but unless such endorsement is not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, permitted under the related Mortgage Loan Documents; provided that all documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of the following conditions and/or limitations nonpayment, in which case such policy shall apply: not be cancelled without 10 days prior notice) and (Avi) be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer shall not or the Special Servicer under any such Insurance Policies (other than amounts to be required applied to maintain any earthquake the restoration or environmental insurance policy on any repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan REO Property or Serviced Loan Combination pursuant amounts to be released to the terms related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan Documents and Companion Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Master Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is available at commercially reasonable rates insufficient therefor, advanced by the Master Servicer as a Servicing Advance. Notwithstanding the foregoing, with respect to the Mortgage Loans that either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the Trustee has an insurable interest; applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan reasonably requires from time to time in order to protect its interests, the Master Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standards that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Master Servicer and the Master Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than [5]% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Master Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any Serviced such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan or Serviced Loan Combination grants in the lender thereunder any discretion (by way absence of consentsuch deductible limitation, approval or otherwise) the deductible limitation which is consistent with the Servicing Standards. In connection with its activities as to administrator and Master Servicer of the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageMortgage Loans, the Master Servicer shall (agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing StandardStandards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) use efforts If the Master Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Master Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Properties and REO Properties. In the event the Master Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Master Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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 to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained;Standards. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Master Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Master Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Master Servicer or the Special Servicer, as applicable, is rated at least "Baa3" by Moody's and "A" by Fitch, the Master Servicer or the Special Servicer, xx xxplicable, shall be allowed to provide self-insurance with respect to a fidelity bond and an "errors and omissions" Insurance Policy. Such amount of coverage shall be in such form and amount as are consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall Standards. Coverage of the Master Servicer be required to cause or the Borrower Special Servicer under any Serviced Mortgage Loan to maintain, a policy or itself obtain, insurance coverage that bond obtained by an Affiliate of the Master Servicer has determined is either (ior the Special Servicer and providing the coverage required by this Section 3.07(c) not available at any rate or (ii) not available at commercially reasonable rates shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the related hazards are not at the time commonly insured against at the then-available rates for properties similar Master Servicer will promptly report in writing to the related Mortgaged Property Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and located omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or around procured pursuant to the region in which the related Mortgaged Property is located;requirements of this Section 3.07(c).

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp), Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp), Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to the case of each Mortgage Loans and the Trust Companion Loan (other than a Non-Serviced Mortgage Loan or Loan) and any related Serviced Loan Combination, the Master Servicer Companion Loan) shall use reasonable its efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or Special Servicer, as applicable). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined (prior to the occurrence and continuance of any Control Event, any determination that such insurance coverage is not available or not available at commercially reasonable rates to be made with the consent of the Directing Certificateholder (or, with respect to any Serviced AB Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, with the consent of the holder of the related AB Subordinate Companion Loan)) by the Master Servicer (with respect to the Mortgage Loans and the Trust Companion Loan (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Property) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Special Servicer; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or, with respect to REO Property, the Special Servicer, as applicable, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard taking into account the insurance in place at the closing of the Mortgage Loan and only in the event the Trustee has an insurable interest; (B) if interest therein and such insurance is available to the extent that any Serviced Mortgage Loan Master Servicer or Serviced Loan Combination grants the lender thereunder any discretion (by way of consentSpecial Servicer, approval or otherwise) as applicable, and, if available, can be obtained at commercially reasonable rates, provided that, with respect to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageimmediately preceding proviso, the Master Servicer shall (will be obligated to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the requisite Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Special Servicer with (unless a Control Event has occurred and is continuing) the consent of the Directing Certificateholder). The Master Servicer and Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage from Qualified Insurers that, in each case, have than was previously required of the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, Mortgagor under the related Mortgage Loan Documents; (D) in no event shall documents unless the Master Special Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, determines that such insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the Master Servicer shall be entitled to conclusively rely on the Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related hazards are Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not at permitted under the time commonly related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured against at party (except in the then-available rates for properties similar case of nonpayment, in which case such policy shall not be cancelled without ten (10) days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer or Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property and located in or around the region in which REO Property or amounts to be released to the related Mortgaged Property is located;Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Certificate Account, subject to withdrawal pursuant to

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C23), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C22)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Serviced Assets) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Assets) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Obligor to maintain (including identifying the extent to which a Borrower is maintaining for each Mortgaged Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Lease or Mortgage Loan Documents and is available at commercially reasonable rates and Loan, as applicable (including for the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Obligor is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Borrower Obligor shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, which are licensed to do business in each casethe state wherein the related Obligor or the Mortgaged Property subject to the policy, have as applicable, is located. If such Obligor does not maintain the Required Claims-Paying Ratings at required insurance or, with respect to any Environmental Policy in place as of the time applicable First Collateral Date, the Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers meeting such criteria; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located or (ii) such insurance is not available at any rate. Subject to Section 3.17(b), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less insurance coverage than was previously required of the Obligor under the related Mortgage or Lease and at a minimum, (i) hazard US-DOCS\96557504.296557504.7 insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and “A” by S&P. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.07(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Mortgaged Properties that it is located;required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.07(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Mortgaged Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Mortgaged Property or REO Property to be covered by such blanket policy in order to satisfy such obligations, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). If the Property Manager or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (which shall not include any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). Any such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property US-DOCS\96557504.296557504.7 a hazard insurance policy complying with the requirements of Section 3.07(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such fidelity bond would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such insurance would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such insurance shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. US-DOCS\96557504.296557504.7 Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also, on behalf of the Issuers, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIIF” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such insurance would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such insurance shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. The insurance described in this clause (c) shall be required to include coverage in respect of losses that may be sustained as a result of an officer’s or employee’s of the Property Manager or the Special Servicer misappropriation of funds and errors and omissions. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch Ratings, Inc., the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that Spirit Realty may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 2 contracts

Samples: Property Management and Servicing Agreement, Property Management and Servicing Agreement (Spirit MTA REIT)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans to the case of each extent that the Trust Fund has an insurable interest, but other than with respect to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan, the GECMC 2007-C1 Serviced Mortgage Loan and their related Companion Loans, as applicable) and the Special Servicer (with respect to REO Properties to the extent that the Trust Fund has an insurable interest, but other than with respect any REO Property related to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan or the GECMC 2007-C1 Serviced Loan CombinationMortgage Loan, the Master Servicer shall use reasonable efforts as applicable) shall, consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent be from Qualified Insurers. For the avoidance of doubt, REO Property with respect to the Servicing Standard to cause the Borrower under any Non-Serviced Mortgage Loans is excluded for all purposes from this Section 3.07. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Advance to be paid by the Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a), the insurance required Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a “standard” mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days’ prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if and only if the Master Servicer Special Servicer, in consultation with the Controlling Class Representative, and, with respect to each Co-Lender Loan (other than the Non-Serviced Mortgage Loans), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located; provided, however, the Controlling Class Representative shall not have more than three Business Days to respond to the Special Servicer’s request for consultation; provided, further, that upon the Special Servicer’s determination, as applicable, consistent with the Servicing Standard, that exigent circumstances do not allow the Special Servicer to consult with the Controlling Class Representative or Companion Holder, if 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. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days’ written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days’ written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least “A” or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31), Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of Mortgage Loans and Serviced Whole Loans (other than Specially Serviced Mortgage Loans and Non-Serviced Mortgage Loans)) and the Special Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Special Servicer, as applicable, provided that any such determination that such insurance is not available at commercially reasonable terms shall, subject to Section 3.24(g), be consented to by the Majority Certificateholder of the Controlling Class); provided, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with the Servicing Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or Serviced REO Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer, which shall be entitled to rely on an opinion of counsel or insurance consultants in making such determination, provided that, subject to the Servicing Standard, such final determination shall be consented to by the Majority Certificateholder of the Controlling Class) obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer in obtaining advice of counsel or insurance consultants) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05(e). If the Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the applicable insurance is not available at commercially reasonable terms, 152 the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan Combinationserviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer shall (or in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan or Serviced Whole Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying a flood insurance policy meeting the extent to which a Borrower is maintaining requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage andavailable under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by the related Mortgage Loan or Serviced Whole Loan. With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or the Serviced Whole Loan, if (i) the Mortgagor is required by the terms of the Mortgage Loan or Serviced Whole Loan to maintain such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of such Serviced the Mortgage Loan or Serviced Whole Loan Combinationpermit the mortgagee to require the Mortgagor to obtain such insurance, but, the Master Servicer (or in any event, in an amount sufficient to avoid the application case of any co-Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance clause within 120 days of such notification, the Master Servicer (or in the case of any Specially Serviced Mortgage Loan, the Special Servicer) shall obtain such insurance, the cost of which shall be a Servicing Advance and (yshall be recoverable by the Master Servicer pursuant to Section 3.05(a) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) 3.05(e); provided, that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided, further, if the Master Servicer or environmental insurance policy on any Special Servicer, as applicable, shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property securing a and (ii) would be in the best interest of the Certificateholders (or with respect to any Serviced Whole Loan, of the Certificateholders and, to the extent applicable, any related Serviced B Note Holders), then the Master Servicer shall make such payment from amounts in the Certificate Account or, with respect to any Serviced Whole Loan, from the related Serviced Whole Loan Custodial Account. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan or Serviced Loan Combination unless as is consistent with the Servicing Standard. All such insurance policy was policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in effect at the time case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the origination Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of such Serviced Mortgage Loan the related Mortgaged Property or Serviced Loan Combination pursuant REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates or Serviced Whole Loan documents and the Trustee has Servicing Standard) shall be deposited in (or remitted for deposit to) the Certificate Account or, with respect to any Serviced Whole Loan, deposited in (or remitted for deposit to) the related 153 Serviced Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a) and Section 3.05(e), respectively, in the case of amounts received in respect of a Mortgage Loan or Serviced B Note, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a) or Section 3.05(e), as applicable. (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account or, with respect to any Serviced Whole Loan, deposited in the related Serviced Whole Loan Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect to the Serviced Whole Loans and the related Serviced B Note Holders), claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account or, with respect to any Serviced Whole Loan, deposit into the related Serviced Whole Loan Custodial Account (or into the Servicing Account if insurance proceeds 154 are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect to any Serviced Whole Loan, the related Borrower to obtain Serviced B Note Holders), claims under any such master force placed insurance policy maintained by it in a timely fashion in accordance with the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees (and with the Servicing Standard respect to other persons acting on behalf of it, shall cause the Borrower under any Serviced Mortgage Loan such persons to maintain such insurance) in connection with its activities under this Agreement and naming the Trustee as an additional insured or loss payee, as applicable. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans, Serviced Whole Loans and/or the REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required obtained from Qualified Insurers having a claims paying ability rating (or the obligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, as applicable) of not less than (x) "A" by Standard & Poor's and (y) "A" by Fitch; provided, however, that the requirements of clauses (x) or (y) shall not be applicable with respect to cause Standard & Poor's or Fitch, as applicable, if such Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not result, in and of itself, in a downgrade, qualification or withdrawal of the Borrower under then current ratings by such Rating Agency of any Serviced Mortgage Loan to maintainClass of Certificates. Notwithstanding the foregoing, so long as the long-term debt or itself obtain, insurance coverage that the deposit obligations or claims-paying ability of the Master Servicer has determined or Special Servicer (or its immediate or remote parent) is either (irated at least "A" by Standard & Poor's and "A" by Fitch, the Master Servicer or Special Servicer, respectively, shall be allowed to provide self-insurance with respect to a fidelity bond and such errors and omissions policy. Coverage of the Master Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Master Servicer or the Special Servicer and providing the coverage required by this Section 3.07(d) not available at any rate or (ii) not available at commercially reasonable rates and shall satisfy the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;requirements of this Section 3.07(d).

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2005-C1 Trust), Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2005-C1 Trust)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standard); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan. All such Insurance Policies shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of the full replacement cost of the REO Property or the outstanding principal balance owing on the related REO Loan, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents) and (v) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, at its own expense, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement with a deductible clause that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the Fidelity Bond or errors and omission policy as the case may be. The Servicer or the Special Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be named as a loss payee on each such fidelity bond and errors and omissions policy. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by ___ and "A" by ___ (if rated by ___), the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. (d) During all such times as any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the Flood Disaster Protection Act of 1973, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and (y) all other insurance coverage (including but described above is not limited to coverage borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requiresuch costs, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply:Section 3.03(c). (Ae) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Master Special Servicer shall not will cause to be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant maintained, to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the Flood Disaster Protection Act of 1973, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp), Pooling and Servicing Agreement (Chase Commercial Mortgage Securities Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) that hereof), to the lender extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is entitled to reasonably require, required under the related Mortgage (subject to applicable law, under the related Mortgage Loan Documents); provided that all of if any Mortgage permits the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required holder thereof to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant dictate to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to Mortgagor the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) use efforts consistent with the Servicing Standard . The Special Servicer shall cause to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatbe maintained for each REO Property, in each case, have case with an insurer that possesses the Required Claims-Paying Ratings at the time such policy is purchased, no less insurance coverage is obtained;than was previously required of the related Mortgagor under the related Mortgage and, if the related Mortgage did not so require, hazard insurance, public liability insurance and business interruption or rent loss insurance in such amounts as are consistent with the Servicing Standard, and the Special Servicer shall be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05 (Ca) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Mortgagor has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have no satisfied its obligation beyond using its reasonable efforts to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the Borrower under any Serviced terms of the related Mortgage Loan documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount not otherwise payable under the master single interest policy because of such deductible clause, to maintain 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 at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a fidelity bond in such form and amount as would permit it to be a qualified Fannxx Xxe xx Fredxxx Xxc seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Mortgage Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fannxx Xxx or Fredxxx Xxx seller-servicer of multifamily mortgage loans. Any such errors and omissions policy, if required, shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. It is understood and agreed that the Rating Agencies have affirmed in writing that the use of certain specified insurance carriers by the Master Servicer, the Special Servicer and/or Sub-Servicers will not, in and of itself, cause a downgrade, qualification or change in the rating assigned to any Class of Certificates, notwithstanding that such insurance carriers do not possess the Required Claims-Paying Ratings as of the Closing Date. It is further understood and agreed that if the claims-paying ratings of any such insurance carrier are downgraded below the level assigned as of the Closing Date, such insurance carrier promptly shall be replaced by a Qualified Insurer that possesses the Required Claims-Paying Ratings. (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan CombinationLoan, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower each Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower the Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documentsloan documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such loan documents permit the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (exercise such discretion in a manner consistent with the Servicing Standard and, prior to the date such existing insurance expires or is required to be renewed, the Master Servicer may, to the extent consistent with the Servicing Standard, take into account insurance in place at loan origination, with a view towards requiring insurance comparable to that required under other Mortgage Loans with express provisions governing such matters and including business interruption or rental loss insurance for at least 12 months; provided, further, that the Master Servicer shall be required to maintain such insurance coverage upon the related Mortgagor’s failure to do so only to the extent that such insurance is available at commercially reasonable rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage (to the extent available at commercially reasonable rates) use efforts (A) than was previously required of the related Mortgagor under the related loan documents and (B), at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance required to cause the related Borrower to obtain the requisite insurance coverage be maintained by Master Servicer or Special Servicer shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than “[_]” from [_] and “[_]” from [_] (or in such other form and amount or issued by an insurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans), or shall name the Trustee) as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited into the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable, in the case of amounts received in respect of a Mortgage Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of a REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust to enforce any obligations of the related Mortgagor under such Mortgage Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or the Special Servicer, as the case may be, as a Servicing Advance. Notwithstanding the foregoing, if as of the Closing Date the loan documents specifically and expressly set forth terms requiring insurance coverage is obtained; against terrorist or similar acts for a Mortgage Loan with a Stated Principal Balance greater than $[_________], then the Master Servicer and the Special Servicer shall enforce the terms of the related loan documents in accordance with the Servicing Standard, and if the Mortgagor fails to maintain such insurance, such failure shall constitute a Servicing Transfer Event. To the extent the loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Mortgage Loan (Cx) requires a Mortgagor to maintain insurance policies covering some or all of the risks contained in the Additional Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer (in consultation with the Special Servicer (in consultation with the Directing Certificateholder)) has determined that the loan documents permit the lender to require the Mortgagor to maintain insurance policies covering some or all the risks contained in the Additional Exclusions (the covered risks required to be covered or that the lender has the discretion to require to be covered being referred to as “Covered Risks”), the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent in accordance with the Servicing Standard to cause determine whether, upon renewal of the Borrower under Mortgagor’s property or casualty insurance (including any Serviced Mortgage Loan to maintain all-risk insurance policy), any of the insurance required to be maintained or that Covered Risks are excluded from coverage. If any of the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall Covered Risks are determined by the Master Servicer to be required to cause the Borrower under any Serviced Mortgage Loan to maintainexcluded from coverage, or itself obtain, insurance coverage that the Master Servicer has determined is shall request the Mortgagor to either (i) not available at any rate purchase insurance acceptable to the Master Servicer in accordance with the Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide a written explanation as to its reasons for failing to purchase such insurance. Notwithstanding the foregoing, with the written consent of the Special Servicer in accordance with the Servicing Standard the Master Servicer may waive the requirement to procure insurance covering any of the Covered Risks if the Master Servicer determines in accordance with the Servicing Standard that (1) insurance covering any such Covered Risks is not available at a commercially reasonable rates and price, or (2) based on information reasonably available to the related hazards Master Servicer, after due inquiry, any such Covered Risks are at that time not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the Mortgaged Property is located unless the Stated Principal Balance of the Mortgage Loan is greater than $[_________]. If the Stated Principal Balance of the Mortgage Loan is greater than $[_________], then the Master Servicer must determine that the circumstances in both clauses (1) and (2) of the immediately preceding sentence apply prior to waiving the Mortgagor’s requirement to procure insurance with respect to any Covered Risks. If the Special Servicer fails to give a response to the Master Servicer as referenced in the second preceding sentence within [___] Business Days of the Master Servicer initially notifying the Special Servicer in writing of such request, the Master Servicer shall promptly notify the Directing Certificateholder of such failure of the Special Servicer to respond to such request. If the Directing Certificateholder and/or the Special Servicer have not responded to the Master Servicer within [___] Business Days of the notice referenced in the immediately preceding sentence, the Master Servicer shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain such insurance; provided that during the period that the Special Servicer and/or the Directing Certificateholder are evaluating such insurance, none of the Master Servicer, the Special Servicer and/or the Directing Certificateholder shall be liable for any loss related to its failure to require a Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Master Servicer requires the Mortgagor to maintain such insurance and the Mortgagor fails to maintain such insurance, to the extent such insurance is then reasonably available, the Master Servicer shall then procure such insurance in accordance with the Servicing Standard and such failure by the Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing whether the $[_________] threshold described herein is met for a particular Mortgage Loan, if a Mortgage Loan is secured by multiple Mortgaged Properties, then the amount subject to the $[_________] threshold shall be the portion of the Stated Principal Balance of the related Mortgage Loan prorated based on an individual Mortgaged Property’s appraised value as a percentage of the total appraised value of all of the related Mortgaged Properties. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Mortgage Loans or REO Properties, as applicable, that it is required to service and administer hereunder, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than “[_]” from [_] and “[_]” from [_] or having such other financial strength or claims-paying ability rating as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses 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 for an individual policy that is located;consistent with the Servicing Standard). The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket or master forced placed policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans or REO Properties for which it is responsible exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than “[_]” from [_] (or, if not rated by [_], “[_]” by [_]) and “[_]” from [_], a fidelity bond in such form and amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without [ten] days’ prior written notice to the Trustee. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties for which it is responsible exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than “[_]” from [_] (or, if not rated by [_], “[_]” by [_]) and “[_]” from [_], a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without [ten] days’ prior written notice to the Trustee. So long as the long-term unsecured debt obligations of the Master Servicer or the Special Servicer (or its direct or indirect parent company), as applicable, are rated not lower than “[_]” from [_] and “[_]” from [_], the Master Servicer or Special Servicer, as applicable, may self-insure with respect to either or both of the fidelity bond coverage and the errors and omissions coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.), Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The applicable Master Servicer (with respect to the case of each Mortgage Loans (including the Serviced Whole Loans and other than the Non-Serviced Mortgage Loan Loans) it is obligated to service hereunder and the related Specially Serviced Mortgage Loans) or Serviced Loan Combination, the Master Special Servicer (with respect to REO Properties other than the Bank of America Plaza Mortgaged Property and the Tysons Galleria Mortgaged Property) shall use reasonable efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying other than with respect to the Non-Serviced Mortgage Loans), to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents all insurance coverage as is required under the related Mortgage Loan except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default. If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the applicable Master Servicer (with respect to the Mortgage Loans, Companion Loans and Serviced Whole Loans, and other than the Non-Serviced Mortgage Loans) or the Special Servicer (with respect to REO Properties other than the Bank of America Plaza Mortgaged Property and the Tysons Galleria Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage Loan but only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined by such Master Servicer (with respect to Mortgage Loans and Serviced Whole Loans and other than the Non-Serviced Mortgage Loans) (or in the case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties other than the Bank of America Plaza Mortgaged Property and the Tysons Galleria Mortgaged Property, the Special Servicer) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage Loan permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the applicable Master Servicer or the Special Servicer, as the case may be, shall impose such insurance requirements as are consistent with the Servicing Standards taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, such Master Servicer will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default and only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer and, if available, can be obtained at commercially reasonable rates as determined by the Special Servicer, provided that such Master Servicer shall be entitled to conclusively rely on such determination. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than the Bank of America Plaza Mortgaged Property and the Tysons Galleria Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan and Companion Loan unless the Special Servicer, with Directing Certificateholder consent, determines that such insurance is not available at commercially reasonable rates, provided that such Master Servicer shall be entitled to conclusively rely on such determination. All Insurance Policies that insure against loss to the property and are maintained by the Master Servicers or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans and Companion Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) subject to the proviso in the second sentence of this Section 3.07, be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the applicable Master Servicer or the Special Servicer under any Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan and Companion Loan) shall be deposited in the applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the applicable Master Servicer in maintaining any Insurance Policies in respect of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the applicable Master Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders and Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable Master Servicer as a Servicing Advance. The foregoing provisions of this paragraph shall apply to a Mortgage Loan and its related Companion Loan as if each pair were a single "Mortgage Loan". Notwithstanding the foregoing, with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) or the Companion Loans that either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan or the Companion Loans reasonably requires from time to time in order to protect its interests, the applicable Master Servicer will be required to, consistent with the Servicing Standards, (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if it has knowledge (such knowledge to be based on the applicable Master Servicer's compliance with the immediately preceding clauses (A) and (B)) that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based on the applicable Master Servicer's compliance with the immediately preceding clauses (A) and (B)) that any borrower fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standards that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the applicable Master Servicer and such Master Servicer shall cause such insurance to be maintained in accordance with this Section 3.07(a). Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Master Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. Notwithstanding the foregoing, the applicable Master Servicer will not be required to maintain or cause to be maintained any earthquake or environmental insurance on a Mortgaged Property unless such insurance was in effect as of origination of the Mortgage Loan or the date of initial issuance of the Certificates and such insurance is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;rates.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp9), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp9)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standard); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan. All such Insurance Policies shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of the full replacement cost of the REO Property or the outstanding principal balance owing on the related REO Loan, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents) and (v) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, at its own expense, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement with a deductible clause that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the Fidelity Bond or errors and omission policy as the case may be. The Servicer or the Special Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be named as a loss payee on each such fidelity bond and errors and omissions policy. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by _______________ and "A" by _______________ (if rated by _______________), the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. (d) During all such times as any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the Flood Disaster Protection Act of 1973, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and (y) all other insurance coverage (including but described above is not limited to coverage borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requiresuch costs, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply:Section 3.03(c). (Ae) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Master Special Servicer shall not will cause to be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant maintained, to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the Flood Disaster Protection Act of 1973, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 2 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. The Master Servicer (awith respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) In and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Loans) shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent , with a view towards requiring insurance comparable to that required under other Mortgage Loans with express provisions governing such matters; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have a claims-paying rating no lower than two rating categories below the Required Claims-Paying Ratings at highest rated Bonds outstanding, and in any event no lower than "[A]" (or an equivalent rating), from each of the time such Rating Agencies. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage is obtained; than was previously required of the Mortgagor under the related Mortgage and at a minimum, (Ci) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) comprehensive general liability insurance, in each case, in an amount customary for the Master Servicer shall have no obligation beyond using its reasonable efforts type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance shall be obtained from Qualified Insurers that, in each case, if providing casualty insurance, shall have a claims-paying rating no lower than two rating categories below the highest rated Bonds outstanding, and in any event no lower than "[A]" (or an equivalent rating), from each of the Rating Agencies. All such insurance policies shall contain (if they insure against loss to cause the Borrower under any Serviced Mortgage Loan property) a "standard" mortgagee clause, with loss payable 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; (D) in no event shall the Master Servicer be required to cause on behalf of the Borrower under any Serviced Trustee (in the case of insurance maintained in respect of Mortgage Loan to maintainLoans), or itself obtainshall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance coverage that maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property and located in or around the region in which REO Property or amounts to be released to the related Mortgaged Property is located;Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property.

Appears in 2 contracts

Samples: Servicing and Administration Agreement (Criimi Mae CMBS Corp), Servicing and Administration Agreement (Criimi Mae CMBS Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Servicer or the case of each Serviced Mortgage Loan or Serviced Loan CombinationSpecial Servicer, the Master Servicer as applicable, shall use reasonable its efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan and Companion Loan all insurance coverage as is required under the Master related Mortgage and only in the event the Trustee has an insurable interest therein and such insurance is available to the Servicer will itself cause or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates, except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer or the Special Servicer, as applicable, shall impose such insurance requirements as are consistent with the Servicing Standards, provided that, with respect to the immediately preceding proviso, the Servicer or the Special Servicer, as applicable, will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default and only in the event the Trustee has an insurable interest therein and such insurance is available to the Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan and Companion Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans and Companion Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying RatingsServicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan and Companion Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. The foregoing provisions of this paragraph shall apply to the Grace Building Whole Loan as if it were a single "Mortgage Loan". Notwithstanding the foregoing, with respect to the Mortgage Loans or the Grace Building Whole Loan (as applicable) that either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan or the Grace Building Whole Loan reasonably requires from time to time in order to protect its interests, the Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (xB) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standards that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Servicer and the Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans, including the Grace Building Whole Loan, or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including the Grace Building Whole Loan, or in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standards. In connection with its activities as administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest policy because of such deductible clause, to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including the Grace Building Whole Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standards. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer or the Special Servicer, as applicable, is rated at least "A" by S&P and "A" by Fitch (and, insofar as any class of Grace Building Companion Loan Securities is then rated by Moody's, "Baa3" by Moody's), the Servicer or the Special Servicer, as axxxxxxxle, shall be xxxxxxd to provide for reduction due self-insurance with respect to depreciationa fidelity bond and an Errors and Omissions Insurance Policy. Such amount of coverage shall be in such form and amount as are consistent with the Servicing Standards. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standards that any Mortgaged Property is in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use efforts consistent with the Servicing Standards to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Mortgage Loan or Companion Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding unpaid principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents or Companion Loan, and (ii) the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. If the cost of any insurance described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (e) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to be maintained, to the extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P.Morgan Chase Commercial Mortgage Securities Series 2004-Cibc9), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to the case of each Mortgage Loans (including the Serviced Whole Loans and other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event) it is obligated to service hereunder and the related Specially Serviced Mortgage Loan Loans) or Serviced Loan Combination, the Master Special Servicer (with respect to REO Properties other than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer Event) shall use reasonable efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event), to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents all insurance coverage as is required under the related Mortgage Loan except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default. If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the Master Servicer (with respect to the Mortgage Loans, Companion Loans and Serviced Whole Loans, and other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event) or the Special Servicer (with respect to REO Properties other than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer Event) shall maintain all insurance coverage as is required under the related Mortgage Loan but only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined by the Master Servicer (with respect to Mortgage Loans and Serviced Whole Loans and other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event) (or in the case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties other than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer Event, the Special Servicer) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, if any Mortgage Loan permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, shall impose such insurance requirements as are consistent with the Servicing Standards taking into account the insurance in place at the closing of the Mortgage Loan; provided that, with respect to the immediately preceding proviso, the Master Servicer or the Special Servicer, as the case may be, will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates as determined by the Master Servicer. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer Event) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan and Companion Loan unless the Special Servicer, with Directing Certificateholder consent, determines that such insurance is not available at commercially reasonable rates; provided that the Master Servicer shall be entitled to conclusively rely on such determination. All Insurance Policies that insure against loss to the property and are maintained by the Master Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans and Companion Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) subject to the proviso in the second sentence of this Section 3.07, be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer or the Special Servicer under any Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan and Companion Loan) shall be deposited in the applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any Insurance Policies in respect of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Master Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders and Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Advance. The foregoing provisions of this paragraph shall apply to a Mortgage Loan and its related Companion Loan as if each pair were a single "Mortgage Loan". Notwithstanding the foregoing, with respect to the Mortgage Loans (other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event) or the Companion Loans that either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan or the Companion Loans reasonably requires from time to time in order to protect its interests, the Master Servicer will be required to, consistent with the Servicing Standards, (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if it has knowledge (such knowledge to be based on the Master Servicer's compliance with the immediately preceding clauses (A) and (B)) that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based on the Master Servicer's compliance with the immediately preceding clauses (A) and (B)) that any borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standards that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Master Servicer and the Master Servicer shall cause such insurance to be maintained in accordance with this Section 3.07(a). Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the Master Servicer's determination of the availability of such insurance, the Master Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. Notwithstanding the foregoing, the Master Servicer will not be required to maintain or cause to be maintained any earthquake or environmental insurance on a Mortgaged Property unless such insurance was in effect as of origination of the Mortgage Loan or the date of initial issuance of the Certificates and such insurance is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;rates.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp11), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp11)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Serviced Assets) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Assets) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Obligor to maintain (including identifying the extent to which a Borrower is maintaining for each Mortgaged Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Lease or Mortgage Loan Documents and is available at commercially reasonable rates and Loan, as applicable (including for the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided , that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Obligor is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided , further , that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Borrower Obligor shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, which are licensed to do business in each casethe state wherein the related Obligor or the Mortgaged Property subject to the policy, have as applicable, is located. If such Obligor does not maintain the Required Claims-Paying Ratings at required insurance or, with respect to any Environmental Policy in place as of the time applicable First Collateral Date, the Property Manager will itself cause such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or with Qualified Insurers meeting such criteria; provided , that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents;58 US-DOCS\ 96557504.7 102826315.7 (Db) in no event The Property Manager or Special Servicer may satisfy its obligations under Section 3.07(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to obtain and maintain, or itself obtaincause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance coverage policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Mortgaged Properties that the Master Servicer has determined it is either required to service and administer, which policy shall (i) not available be obtained from a Qualified Insurer having a claims-paying ability rated at any rate or least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) not available at commercially reasonable rates provide protection equivalent to the individual policies otherwise required under Section 3.07(a) . The Property Manager and the related hazards are Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Mortgaged Properties or REO Properties) without right of reimbursement; provided , that if the Property Manager or the Special Servicer, as the case may be, causes any Mortgaged Property or REO Property to be covered by such blanket policy in order to satisfy such obligations, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). If the Property 59 US-DOCS\ 96557504.7 102826315.7 (c) Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided , that, unless any Rating Agency then rating any Notes at the time commonly insured against at request of an Issuer states that the then-available rates form or amount of any such fidelity bond would be the sole cause of or be a material reason for properties similar a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the related Mortgaged Notes. Each of the Property Manager and located the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in or around the region case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the related Mortgaged Property is located;Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided , that, unless 60 US-DOCS\ 96557504.7 102826315.7

Appears in 2 contracts

Samples: Property Management and Servicing Agreement (Spirit MTA REIT), Property Management and Servicing Agreement (Spirit Realty, L.P.)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The applicable Master Servicer (with respect to the case of each Mortgage Loans (including the Serviced Whole Loans and other than the Non-Serviced Mortgage Loan Loans) it is obligated to service hereunder and the related Specially Serviced Mortgage Loans) or Serviced Loan Combinationthe Special Servicer (with respect to REO Properties other than the Skyline Portfolio Mortgaged Property, the Master Servicer Solana Mortgaged Property and the Americold Pool 2 Mortgaged Property) shall use reasonable efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying other than with respect to the Non-Serviced Mortgage Loans), to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents all insurance coverage as is required under the related Mortgage Loan except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default. If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the applicable Master Servicer (with respect to the Mortgage Loans, Companion Loans and Serviced Whole Loans, and other than the Non-Serviced Mortgage Loans) or the Special Servicer (with respect to REO Properties other than the Skyline Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold Pool 2 Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage Loan but only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined by such Master Servicer (with respect to Mortgage Loans and Serviced Whole Loans and other than the Non-Serviced Mortgage Loans) (or in the case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties other than the Skyline Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold Pool 2 Mortgaged Property, the Special Servicer) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage Loan permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the applicable Master Servicer or the Special Servicer, as the case may be, shall impose such insurance requirements as are consistent with the Servicing Standards taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, such Master Servicer will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default and only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer and, if available, can be obtained at commercially reasonable rates as determined by the Special Servicer, provided that such Master Servicer shall be entitled to conclusively rely on such determination. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than the Skyline Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold Pool 2 Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan and Companion Loan unless the Special Servicer, with Directing Certificateholder consent, determines that such insurance is not available at commercially reasonable rates, provided that such Master Servicer shall be entitled to conclusively rely on such determination. All Insurance Policies that insure against loss to the property and are maintained by the Master Servicers or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans and Companion Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) subject to the proviso in the second sentence of this Section 3.07, be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the applicable Master Servicer or the Special Servicer under any Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan and Companion Loan) shall be deposited in the applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the applicable Master Servicer in maintaining any Insurance Policies in respect of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the applicable Master Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders and Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable Master Servicer as a Servicing Advance. The foregoing provisions of this paragraph shall apply to a Mortgage Loan and its related Companion Loan as if each pair were a single "Mortgage Loan". Notwithstanding the foregoing, with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) or the Companion Loans that either (x) require the Mortgagor to maintain property insurance providing "special" form coverage (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan or the Companion Loans reasonably requires from time to time in order to protect its interests, the applicable Master Servicer will be required to, consistent with the Servicing Standards, (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if it has knowledge (such knowledge to be based on the applicable Master Servicer's compliance with the immediately preceding clauses (A) and (B)) that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based on the applicable Master Servicer's compliance with the immediately preceding clauses (A) and (B)) that any borrower fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standards that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the applicable Master Servicer and such Master Servicer shall cause such insurance to be maintained in accordance with this Section 3.07(a). Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Master Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. Notwithstanding the foregoing, the applicable Master Servicer will not be required to maintain or cause to be maintained any earthquake or environmental insurance on a Mortgaged Property unless such insurance was in effect as of origination of the Mortgage Loan or the date of initial issuance of the Certificates and such insurance is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;rates.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp10), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp10)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Loans) shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent , with a view towards requiring insurance comparable to that required under other Mortgage Loans with express provisions governing such matters; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have a claims-paying rating no lower than two rating categories below the Required Claims-Paying Ratings at highest rated Certificates outstanding, and in any event no lower than "___" (or an equivalent rating), from each of the time such Rating Agencies. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage is obtained; than was previously required of the Mortgagor under the related Mortgage and at a minimum, (Ci) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) comprehensive general liability insurance, in each case, in an amount customary for the Master Servicer shall have no obligation beyond using its reasonable efforts type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance shall be obtained from Qualified Insurers that, in each case, if providing casualty insurance, shall have a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "[A]" (or an equivalent rating), from each of the Rating Agencies. All such insurance policies shall contain (if they insure against loss to cause the Borrower under any Serviced Mortgage Loan property) a "standard" mortgagee clause, with loss payable 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; (D) in no event shall the Master Servicer be required to cause on behalf of the Borrower under any Serviced Trustee (in the case of insurance maintained in respect of Mortgage Loan to maintainLoans), or itself obtainshall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance coverage that maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and located maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "___" (or around an equivalent rating), from each of the region Rating Agencies, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property is located;or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force with a Qualified Insurer having a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than investment grade, from each of the Rating Agencies, a fidelity bond in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by either Rating Agency to the Certificates (as evidenced in writing from each such Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than investment grade, from each of the Rating Agencies, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by either Rating Agency to the Certificates (as evidenced in writing from each such Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Criimi Mae CMBS Corp), Pooling and Servicing Agreement (Criimi Mae CMBS Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Performing Serviced Mortgage Loan or Serviced Loan CombinationLoan, the applicable Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan CombinationLoan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause (except, in the case of the Lock Up Storage Centers Loan Group, as otherwise provided in the related Mortgage Loan Documents) and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the applicable Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Performing Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates (and if the Trustee has applicable Master Servicer does not cause the Borrower 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 on an insurable interestAdministered REO Property so long as such insurance is available at commercially reasonable rates); (B) if and to the extent that any Performing Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the applicable Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the applicable Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Performing Serviced Mortgage Loan 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; (D) in no event shall the applicable Master Servicer be required to cause the Borrower under any Performing Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the applicable Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property mortgaged property and located in or around the region in which the related Mortgaged Property is locatedlocated (in each case, as determined by the applicable Master Servicer, which shall be entitled to rely, at its own expense, on insurance consultants in making such determination) (and provided that any such determinations by the applicable Master Servicer must be made not less frequently (but 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); (E) the reasonable efforts of the applicable Master Servicer to cause the Borrower under any Performing Serviced Mortgage Loan to maintain insurance shall be conducted in a manner that takes into account the insurance that would then be available to the applicable Master Servicer on a force-placed basis; and (F) to the extent the applicable Master Servicer itself is required to maintain insurance that the Borrower under any Performing Serviced Mortgage Loan does not maintain, the applicable Master Servicer shall not be required to maintain insurance other than what is available to such Master Servicer on a force-placed basis (and this will not be construed to modify the other limits set forth in clause (D) above). Notwithstanding the limitation set forth in clause (D) above, the applicable Master Servicer shall, prior to availing itself of any limitation described in that clause with respect to any Performing Serviced Mortgage Loan that has a Stated Principal Balance in excess of $2,500,000, obtain the approval or disapproval of the applicable Special Servicer (and, in connection therewith, the applicable Special Servicer shall be required to comply with any applicable provisions of Section 3.24, 3.27, 3.28 and/or 3.29, if and as applicable). The applicable Master Servicer shall be entitled to rely on the determination of the Special Servicer made in connection with such approval or disapproval. The applicable Special Servicer shall decide whether to withhold or grant such approval in accordance with the Servicing Standard. If any such approval has not been expressly denied within seven Business Days (or in the case of the Serviced Mortgage Loan Groups, such longer period of time, if any, that is provided in or pursuant to Section 3.24, 3.27 3.28 and/or 3.29, if and as applicable) of the applicable Special Servicer's receipt from the applicable Master Servicer of such Master Servicer's determination and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such approval shall be deemed to have been granted. The applicable Master Servicer shall notify the applicable Special Servicer, the Trustee, the Controlling Class Representative and (if a Serviced Mortgage Loan Group is involved) the related Serviced Non-Pooled Mortgage Loan Noteholder, if the applicable Master Servicer determines that the Borrower under any Performing Serviced Mortgage Loan has failed to maintain insurance required under (or that such Master Servicer has required pursuant to a provision that entitles the lender to reasonably require insurance under) the related Mortgage Loan Documents and such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property or if the Borrower under any Performing Serviced Mortgage Loan has notified the applicable Master Servicer in writing that the Borrower does not intend to maintain such insurance and the applicable Master Servicer has determined that such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property. (a) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Mortgage Loan or at such REO Property or (ii) the outstanding principal balance of such Mortgage Loan or the related REO Mortgage Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause, (b) a comprehensive general liability insurance policy with coverage comparable to that which would be required under prudent lending requirements and in an amount not less than $1 million per occurrence and (c) to the extent consistent with the Servicing Standard, a business interruption or rental loss insurance covering revenues or rents for a period of at least twelve (12) months or, with respect to Mortgage Loans with initial principal balances greater than $35 million, at least eighteen (18) months, in each case if so required pursuant to the related Mortgage Loan Documents; provided, however, that neither the applicable Master Servicer nor the applicable Special Servicer shall be required in any event to maintain or obtain the insurance coverage otherwise described by this paragraph beyond what is available at commercially reasonable rates and consistent with the Servicing Standard. All such insurance policies maintained as described above shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee, in the case of insurance maintained in respect of a Serviced Mortgage Loan, or shall name the Trustee as the insured, with loss payable to the applicable Special Servicer on behalf of the Trustee, in the case of insurance maintained in respect of an Administered REO Property. Any amounts collected by a Master Servicer or a Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account of the applicable Master Servicer, a related Companion Note Custodial Account and/or a related Subordinate Note Custodial Account, as appropriate in accordance with Section 3.04, subject to withdrawal pursuant to Section 3.05, in the case of amounts received in respect of a Serviced Mortgage Loan, or in the REO Account of the applicable Special Servicer, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an Administered REO Property. Any cost incurred by a Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of a Master Servicer or Special Servicer on behalf of the Trust (and, if applicable, the Serviced Non-Pooled Mortgage Loan Noteholders) to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to a Master Servicer or the Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall (subject to Section 3.11(h) and Section 3.19(b)) be paid by, and reimbursable to, such Master Servicer or Special Servicer, as the case may be, as a Servicing Advance. (b) If (i) a Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force-placed policy insuring against hazard losses on all of the Serviced Mortgage Loans or Administered REO Properties, as applicable, as to which it is the applicable Master Servicer or the applicable Special Servicer, as the case may be, then, to the extent such policy (A) is obtained from a Qualified Insurer having the Required Claims-Paying Ratings, and (B) provides protection equivalent to the individual policies otherwise required herein and in the Mortgage Loan Documents or (ii) a Master Servicer or Special Servicer has long-term unsecured debt obligations that are rated not lower than "A2" by Xxxxx'x and "A" by Fitch and such Master Servicer or such Special Servicer, as the case may be, self-insures for its obligation to maintain, and deposits into its Collection Account (any such deposit to be deemed to constitute "Insurance Proceeds") the amount of any loss to the Trust that would have been covered by, the individual policies otherwise required, such Master Servicer or such Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such a blanket or master force-placed policy may contain a deductible clause (not in excess of a customary amount), in which case the applicable Master Servicer or the applicable Special Servicer, as the case may be, whichever maintains such policy, shall, if there shall not have been maintained on any Mortgaged Property securing a Serviced Mortgage Loan or any Administered REO Property thereunder a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the applicable Collection Account (or, to the extent the loss affects a related Serviced Non-Pooled Mortgage Loan Noteholder, in the related Companion Note Custodial Account or Subordinate Note Custodial Account, as applicable) maintained by the applicable Master Servicer, from its own funds without any right of reimbursement from the Trust, the amount not otherwise payable under the blanket or master force-placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Serviced 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). The Master Servicers and the Special Servicers shall each prepare and present, on behalf of itself, the Trustee and Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan Noteholders, claims under any such blanket or master force-placed policy maintained by it in a timely fashion in accordance with the terms of such policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts (with respect to Mortgage Loans and (to the extent that the Trust Fund has an insurable interest) Companion Loans including Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to REO Properties) shall, consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts exercise such discretion in a manner consistent with the Servicing Standard and subject to cause the terms of this Section 3.07; and provided further that, if and to the extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with be from Qualified Insurers. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to cause be paid by the Borrower Master Servicer pursuant to Section 3.03. If not required under any Serviced the terms of the Mortgage or the Mortgage Loan Documents, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a), the insurance required Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan documents); (vi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan Documents; ; (Dvii) to the extent that the Mortgage or other Mortgage Loan Documents specifically require terrorism coverage or the Mortgage requires the related Mortgagor to carry "all risk" coverage, shall include terrorism coverage, unless the failure to obtain such terrorism coverage constitutes an Acceptable Insurance Default; and (viii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Notwithstanding the Master foregoing, the Special Servicer shall not be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage for an REO Property that was previously required of the Master Servicer has determined Mortgagor under the related Mortgage if (a) such insurance is either (i) not available at any rate rate; (b) such insurance is not available from a Qualified Insurer (provided that Special Servicer shall obtain such insurance from the next highest rated insurer offering such insurance at commercially reasonable rates); or (iic) subject to the rights of and consultation with the Controlling Class Representative, such insurance is not available at commercially reasonable rates and the related subject hazards are not at the time commonly insured against by prudent owners of similar real properties in similar locales (but only by reference to such insurance that has been obtained by such owners at then current market rates). Any amounts collected by the then-available rates for properties similar Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or around a Companion Loan, or in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan, so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, the Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. In the event that the Special Servicer causes any REO Property to be covered by such blanket policy, the incremental cost of such insurance applicable to such REO Property (other than any minimum or standby premium payable for such policy whether or not any REO Property is covered thereby) shall be paid by the Master Servicer as a Servicing Advance. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Com MRT Pas THR Cert Ser 2002 Mw1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such the related Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) that hereof, and to the lender extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is entitled to reasonably require, required under the related Mortgage (subject to applicable law, under the related Mortgage Loan Documents); provided that all of if any Mortgage permits the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required holder thereof to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant dictate to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to Borrower the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) use efforts consistent with the Servicing Standard . The Special Servicer shall cause to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatbe maintained for each REO Property, in each casecase with an insurer that possesses (or whose obligations are guaranteed or backed, have in writing, by an entity having) the Required Claims-Paying Ratings at the time such policy is purchased, no less insurance coverage is obtained;than was previously required of the related Borrower under the related Mortgage and, if the related Mortgage did not so require, hazard insurance, public liability insurance, business interruption or rent loss insurance and, to the extent consistent with the Servicing Standard, flood and earthquake insurance, all in such amounts as are consistent with the Servicing Standard, and the Special Servicer shall be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05 (Ca) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, solely for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this provision is in no way intended to affect amounts due and owing from the related Borrower under such Mortgage Loan. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses (or whose obligations are guaranteed or backed, in writing, by an entity having) the Required Claims- Paying Ratings, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Borrower has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Collection Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses (or whose obligations are guaranteed or backed, in writing, by an entity having) the Required Claims-Paying Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have no satisfied its obligation beyond using its reasonable efforts to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Borrower has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under terms of the related Mortgage Loan Documents; documents, pursue the related Borrower for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (Dincluding, without limitation, any minimum or standby premium payable for such policy) in no event shall be borne by the Master Servicer be required or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Collection Account from its own funds (without right of reimbursement) the amount not otherwise payable under the master single interest policy because of such deductible clause, to cause the Borrower under extent that any Serviced 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) On or before the Closing Date, with respect to the Mortgage Loans identified on the Mortgage Loan Schedule by loan numbers LC 3272, LC 3297, LC 3339, LC 3377, LC 3755, LC 3857 and LC 3907 (the "Environmentally Insured Loans"), the related Mortgage Loan Seller shall notify the insurer under the related Environmental Insurance Policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to maintainbe an insured (and for the Master Servicer, or itself obtainon behalf of the Trust, insurance coverage to make claims) under such Insurance Policy. In the event that the Master Servicer has determined is either actual knowledge of any event (an "Insured Event") giving rise to a claim under any Environmental Insurance Policy in respect of any Environmentally Insured Loan for which the Borrower has not filed a claim, the Master Servicer shall, in accordance with the terms of such Insurance Policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and take all other actions necessary under such Insurance Policy in order to realize the full value thereof for the benefit of the Certificateholders. With respect to each Environmental Insurance Policy in respect of an Environmentally Insured 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 Event giving rise to a claim under such policy. The Master Servicer shall abide by the terms and conditions precedent to payment of claims under the Environmental Insurance Policies with respect to the Environmentally Insured Loans and take all such action as may be required to comply with the terms and provisions of such policies in order to maintain such policies in full force and effect and to make claims thereunder. In the event that the Master Servicer receives notice of any termination of any Environmental Insurance Policy with respect to an Environmentally Insured 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 Section 3.07(a). Any legal fees, premiums or other out of pocket costs incurred in accordance with the Servicing Standard in connection with enforcing the obligations of the Borrower under any Environmental Insurance Policy or 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. Without limiting its obligations hereunder with respect to any other Mortgage Loan, the Master Servicer shall monitor the actions, and enforce the obligations, of the related Borrower under each Environmentally Insured Loan insofar as such actions/obligations relate to (i) not available at to the extent consistent with Section 3.07(a), the maintenance (including, without limitation, any rate or (iirequired renewal) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar of an Environmental Insurance Policy with respect to the related Mortgaged Property and located in or around the region in which (ii) environmental testing or remediation at the related Mortgaged Property Property. (d) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess (or whose obligations are guaranteed or backed, in writing, by entities having) the Required Claims-Paying Ratings, a fidelity bond in such form and amount as would permit it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess (or whose obligations are guaranteed or backed, in writing, by entities having) the Required Claims-Paying Ratings, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Mortgage Loans for which it is located;responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. (e) All insurance coverage required to be maintained under this Section 3.07 shall be obtained from Qualified Insurers.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Com Mor Pas THR Cer Se 1999-C1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of each Mortgage Loans other than the Mesa Grande Loan A2 and Specially Serviced Mortgage Loan Loans) and the Special Servicer (in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Serviced Loan CombinationSpecial Servicer, as applicable); provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall use reasonable efforts impose such insurance requirements as are consistent with the Servicing Standard Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer, which shall be entitled to rely (at its own expense) on an opinion of counsel or insurance consultants in making such determination) obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer in obtaining advice of counsel or insurance consultants) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If the Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the applicable insurance is not available at commercially reasonable terms, the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan serviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts to cause the related Borrower Mortgagor to maintain (including identifying a flood insurance policy meeting the extent to which a Borrower is maintaining requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage andavailable under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by the related Mortgage Loan. With respect to any Mortgage Loan other than the Mesa Grande Loan A2, if (i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (or in the case of a Specially Serviced Mortgage Loan or Serviced Loan CombinationLoan, butthe Special Servicer) shall obtain such insurance, in any event, in an amount sufficient the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsSection 3.05(a); provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided further, if the Master Servicer or environmental insurance policy on any Special Servicer, as applicable, shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property securing a Serviced and (ii) would be in the best interest of the Certificateholders, then the Master Servicer shall make such payment from amounts in the Certificate Account. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan or Serviced Loan Combination unless as is consistent with the Servicing Standard. All such insurance policy was policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in effect at the time case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the origination Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of such Serviced Mortgage Loan the related Mortgaged Property or Serviced Loan Combination pursuant REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a). 101 (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the related Borrower to obtain Trustee and the requisite Certificateholders, claims under any such master force placed insurance coverage from Qualified Insurers that, policy maintained by it in each case, have a timely fashion in accordance with the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is 102 greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or the REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause obtained from Qualified Insurers having a claims paying ability rating (or the Borrower under any Serviced Mortgage Loan to maintainobligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, or itself obtainas applicable) of not less than (x) "A" by Standard & Poor's, insurance coverage (y) "A2" by Xxxxx'x and (z) "A" by Fitch; provided, however, that the Master Servicer has determined is either requirements of clauses (ix), (y) not available at any rate or (iiz) shall not available at commercially reasonable rates and be applicable with respect to Standard & Poor's, Xxxxx'x or Fitch, as applicable, if the related hazards are Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not at result, in and of itself, in a downgrade, qualification or withdrawal of the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;then current ratings by such Rating Agency of any Class of Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan CombinationLoan, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower each Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower the Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documentsloan documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such loan documents permit the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (exercise such discretion in a manner consistent with the Servicing Standard and, prior to the date such existing insurance expires or is required to be renewed, the Master Servicer may, to the extent consistent with the Servicing Standard, take into account insurance in place at loan origination, with a view towards requiring insurance comparable to that required under other Mortgage Loans with express provisions governing such matters and including business interruption or rental loss insurance for at least 12 months; provided, further, that the Master Servicer shall be required to maintain such insurance coverage upon the related Mortgagor's failure to do so only to the extent that such insurance is available at commercially reasonable rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage (to the extent available at commercially reasonable rates) use efforts (A) than was previously required of the related Mortgagor under the related loan documents and (B), at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance required to cause the related Borrower to obtain the requisite insurance coverage be maintained by Master Servicer or Special Servicer shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A2" from Moody's and "A" from S&P (or in such other form and amount or issuxx xx xn insurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event. All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans), or shall name the Trustee) as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited into the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable, in the case of amounts received in respect of a Mortgage Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of a REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust to enforce any obligations of the related Mortgagor under such Mortgage Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or the Special Servicer, as the case may be, as a Servicing Advance. Notwithstanding the foregoing, if as of the Closing Date the loan documents specifically and expressly set forth terms requiring insurance coverage is obtained; against terrorist or similar acts for a Mortgage Loan with a Stated Principal Balance greater than $[_________], then the Master Servicer and the Special Servicer shall enforce the terms of the related loan documents in accordance with the Servicing Standard, and if the Mortgagor fails to maintain such insurance, such failure shall constitute a Servicing Transfer Event. To the extent the loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Mortgage Loan (Cx) requires a Mortgagor to maintain insurance policies covering some or all of the risks contained in the Additional Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer (in consultation with the Special Servicer (in consultation with the Directing Certificateholder)) has determined that the loan documents permit the lender to require the Mortgagor to maintain insurance policies covering some or all the risks contained in the Additional Exclusions (the covered risks required to be covered or that the lender has the discretion to require to be covered being referred to as "Covered Risks"), the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent in accordance with the Servicing Standard to cause determine whether, upon renewal of the Borrower under Mortgagor's property or casualty insurance (including any Serviced Mortgage Loan to maintain all risk insurance policy), any of the insurance required to be maintained or that Covered Risks are excluded from coverage. If any of the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall Covered Risks are determined by the Master Servicer to be required to cause the Borrower under any Serviced Mortgage Loan to maintainexcluded from coverage, or itself obtain, insurance coverage that the Master Servicer has determined is shall request the Mortgagor to either (i) not available at any rate purchase insurance acceptable to the Master Servicer in accordance with the Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide a written explanation as to its reasons for failing to purchase such insurance. Notwithstanding the foregoing, with the written consent of the Special Servicer in accordance with the Servicing Standard the Master Servicer may waive the requirement to procure insurance covering any of the Covered Risks if the Master Servicer determines in accordance with the Servicing Standard that (1) insurance covering any such Covered Risks is not available at a commercially reasonable rates and price, or (2) based on information reasonably available to the related hazards Master Servicer, after due inquiry, any such Covered Risks are at that time not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the Mortgaged Property is located unless the Stated Principal Balance of the Mortgage Loan is greater than $[_________]. If the Stated Principal Balance of the Mortgage Loan is greater than $[_________], then the Master Servicer must determine that the circumstances in both clauses (1) and (2) of the immediately preceding sentence apply prior to waiving the Mortgagor's requirement to procure insurance with respect to any Covered Risks. If the Special Servicer fails to give a response to the Master Servicer as referenced in the second preceding sentence within [___] Business Days of the Master Servicer initially notifying the Special Servicer in writing of such request, the Master Servicer shall promptly notify the Directing Certificateholder of such failure of the Special Servicer to respond to such request. If the Directing Certificateholder and/or the Special Servicer have not responded to the Master Servicer within [___] Business Days of the notice referenced in the immediately preceding sentence, the Master Servicer shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain such insurance; provided that during the period that the Special Servicer and/or the Directing Certificateholder are evaluating such insurance, none of the Master Servicer, the Special Servicer and/or the Directing Certificateholder shall be liable for any loss related to its failure to require a Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Master Servicer requires the Mortgagor to maintain such insurance and the Mortgagor fails to maintain such insurance, to the extent such insurance is then reasonably available, the Master Servicer shall then procure such insurance in accordance with the Servicing Standard and such failure by the Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing whether the $[_________] threshold described herein is met for a particular Mortgage Loan, if a Mortgage Loan is secured by multiple Mortgaged Properties, then the amount subject to the $[_________] threshold shall be the portion of the Stated Principal Balance of the related Mortgage Loan pro rated based on an individual Mortgaged Property's appraised value as a percentage of the total appraised value of all of the related Mortgaged Properties. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Mortgage Loans or REO Properties, as applicable, that it is required to service and administer hereunder, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than "A3" from Moody's and "A" from S&P or having such other financial strength ox xxxxxs-paying ability rating as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses 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 for an individual policy that is located;consistent with the Servicing Standard). The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket or master forced placed policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans or REO Properties for which it is responsible exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A2" from Moody's (or, if not rated by Moody's, "A-IX" by A.M. Best) and "A" xxxx X&P, a fidelity bond in xxxx xorm and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in suxx xxxer form and amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without [ten] days' prior written notice to the Trustee. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties for which it is responsible exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A2" from Moody's (or, if not rated by Moody's, "A-IX" by A.M. Best) and "A" xxxx X&P, a policy or policixx xx xnsurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in suxx xxxex xorm and amount or issued by an insurer with such other financial strength or claims-paying rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without [ten] days' prior written notice to the Trustee. So long as the long-term unsecured debt obligations of the Master Servicer or the Special Servicer (or its direct or indirect parent company), as applicable, are rated not lower than "A2" from Moody's and "A" from S&P, the Master Servicer or Special Servicer, xx xxxlicable, may self-insure with respect to either or both of the fidelity bond coverage and the errors and omissions coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans to the case of each extent that the Trust Fund has an insurable interest, but other than with respect to the 2006-C23 Serviced Mortgage Loan or Serviced Loan Combinationand its related Companion Loan) and the Special Servicer (with respect to REO Properties to the extent that the Trust Fund has an insurable interest) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent be from Qualified Insurers. For the avoidance of doubt, REO Property with respect to the Servicing Standard to cause the Borrower under any 2006-C23 Serviced Mortgage Loan is excluded for all purposes from this Section 3.07. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Advance to maintain be paid by the Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance required be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without thirty (30) days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if and only if the Master Servicer with respect to non-Specially Serviced Mortgage Loans or the Special Servicer with respect to Specially Serviced Mortgage Loans, in consultation with the Controlling Class Representative, and, with respect to each Co-Lender Loan (other than the 2006-C23 Serviced Mortgage Loan), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the borrower to maintain terrorism insurance (provided that the decision of the Controlling Class Representative to grant or withhold such consent shall be disregarded by the Special Servicer if such consent or lack of consent would cause the Master Servicer or the Special Servicer, as applicable, to violate the Servicing Standard); provided, however, the Controlling Class Representative's approval shall be deemed to have been given if it has not responded within five (5) Business Days of receipt of the Master Servicer's or the Special Servicer's written recommendation and the information upon which such recommendation is based; provided, further, that upon the Master Servicer's or the Special Servicer's determination, as applicable, consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or the Special Servicer to consult with the Controlling Class Representative or Companion Holder, if applicable, the Master Servicer or the Special Servicer, as applicable, shall not be required to do so; provided, further, 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. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C25)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to the case of each Mortgage Loans and the ESK Companion Loan (other than a Non-Serviced Mortgage Loan or Loan) and any related Serviced Loan Combination, the Master Servicer Companion Loan) shall use reasonable its efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to by the terms of the related Mortgage Loan Documents documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or Special Servicer, as applicable). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan), ESK Companion Loan and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, as determined (prior to the occurrence and continuance of any Control Event, any determination that such insurance coverage is not available or not available at commercially reasonable rates to be made with the consent of the Directing Certificateholder (or, with respect to any Serviced AB Whole Loan or ESK Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, with the consent of the holder of the related AB Subordinate Companion Loan or the Class ESK Directing Certificateholder)) by the Master Servicer (with respect to the Mortgage Loans and ESK Companion Loan (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Property) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Special Servicer; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or, with respect to REO Property, the Special Servicer, as applicable, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard taking into account the insurance in place at the closing of the Mortgage Loan and only in the event the Trustee has an insurable interest; (B) if interest therein and such insurance is available to the extent that any Serviced Mortgage Loan Master Servicer or Serviced Loan Combination grants the lender thereunder any discretion (by way of consentSpecial Servicer, approval or otherwise) as applicable, and, if available, can be obtained at commercially reasonable rates, provided that, with respect to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageimmediately preceding proviso, the Master Servicer shall (will be obligated to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the requisite Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Special Servicer with (unless a Control Event has occurred and is continuing) the consent of the Directing Certificateholder). The Master Servicer and Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage from Qualified Insurers thatthan was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) which case the Master Servicer shall have be entitled to conclusively rely on the Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without ten (10) days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer or Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced Companion Loan) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation beyond using to do so, shall be advanced by the Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the Certificate Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, ESK Companion Loan and Serviced Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan, ESK Companion Loan or Serviced Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the Certificate Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan or ESK Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision to the contrary, the Master Servicer will not be required to maintain, and will not be in default for failing to obtain, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan and is currently available at commercially reasonable rates. Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan (including the ESK Companion Loan or Serviced Companion Loan) reasonably requires from time to time in order to protect its reasonable interests, the Master Servicer will be required to, consistent with the Servicing Standard, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if it has knowledge that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based upon the Master Servicer’s compliance with the immediately preceding clauses (A) and (B) above) that any Mortgagor fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Special Servicer (at the Borrower under expense of the Trust) shall be entitled to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Special Servicer shall promptly deliver such conclusions in writing to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder, neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans (including the ESK Companion Loan or Serviced Companion Loan, but excluding any Non-Serviced Mortgage Loan Loan) or REO Properties (other than with respect to maintain a Non-Serviced Mortgaged Property), as the insurance case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the lender is entitled individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to reasonably require, subject the extent that any such deductible exceeds the deductible limitation that pertained to applicable law, under the related Mortgage Loan Documents; (D) including the ESK Companion Loan or Serviced Companion Loan), or in no event shall the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as administrator and Master Servicer of the Mortgage Loans, ESK Companion Loan or any Serviced Companion Loans, the Master Servicer be required agrees to cause prepare and present, on behalf of itself, the Borrower Trustee and Certificateholders, claims under any Serviced Mortgage Loan such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standard, may maintain, or itself obtainearthquake insurance on REO Properties (other than with respect to a Non-Serviced Mortgaged Property), insurance provided coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and rates, the related hazards are not at cost of which shall be a Servicing Advance. (ii) If the time commonly insured against at Master Servicer or the thenSpecial Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-available rates for properties similar placed insurance policy with a Qualified Insurer naming the Master Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Properties

Appears in 1 contract

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C24)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Mortgage Loan (including each Specially Serviced Mortgage Loan or Serviced Loan CombinationLoan), the applicable Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage Loan grants the lender thereunder any discretion (by way of consent, approval or Serviced otherwise) as to the insurance coverage that the related Borrower is required to maintain, the applicable Master Servicer shall exercise such discretion in a manner consistent with the Servicing Standard, with a view towards requiring insurance comparable to that required under other Mortgage Loans with express provisions governing such matters and, in any event, business interruption or rental loss insurance for at least 12 months; and provided, further, that, if and to the extent that any Mortgage Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower borrower is to obtain the requisite insurance coverage, the applicable Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Mxxxx'x (or in such other form and amount or issued by an insurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event); and provided, further, that, in the case of any Mortgage Loan, the applicable Master Servicer shall be required to maintain such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under upon the related Mortgage Loan Documents; (D) in no event shall Borrower's failure to do so only to the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, extent that such insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the Trustee as mortgagee has an insurable interest. Subject to Section 3.17(b), the applicable Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage (to the extent available at commercially reasonable rates) than was previously required of the related hazards are not Borrower under the related Mortgage Loan Documents and, at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the time commonly insured type and geographic location of such REO Property and consistent with the Servicing Standard; provided that all such insurance shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Mxxxx'x (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event). All such insurance policies shall contain (if they insure against at loss to property) a "standard" mortgagee clause, with loss payable to the then-available rates for properties similar applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of a Mortgage Loan), or shall name the Trustee as the insured, with loss payable to the applicable Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of an REO Property), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by a Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account of the applicable Master Servicer, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account of the applicable Special Servicer, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by a Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of a Master Servicer on behalf of the Trust to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to a Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and located reimbursable to such Master Servicer or Special Servicer, as the case may be, as a Servicing Advance. (b) If a Master Servicer or Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Mortgage Loans or REO Properties, as applicable, as to which it is the applicable Master Servicer or Special Servicer, as the case may be, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than "A" from S&P and "A2" from Mxxxx'x or having such other financial strength or claims-paying ability rating as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event, and (ii) provides protection equivalent to the individual policies otherwise required, such Master Servicer or around Special Servicer, as the region in which case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such a blanket or master force placed policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or Special Servicer, as the case may be, that maintains such policy shall, if there shall not have been maintained on any Mortgaged Property or REO Property thereunder a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Collection Account maintained by the applicable Master Servicer, from its own funds, the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses 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 for an individual policy which is located;consistent with the Servicing Standard). Each Master Servicer and Special Servicer shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket or master force placed policy maintained by it in a timely fashion in accordance with the terms of such policy. (c) Within 45 days after the Closing Date, with respect to each of the Mortgage Loans covered by an Environmental Insurance Policy that are listed on Exhibit B-4 to this Agreement, the applicable Master Servicer shall notify the insurer under such Environmental Insurance Policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for such Master Servicer, on behalf of the Trust, to make claims) under such Environmental Insurance Policy. In the event that the applicable 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 covered thereby, the applicable 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. If any other party hereto has actual knowledge of an Insured Environmental Event with respect to any Mortgage Loan listed on Exhibit B-4 to this Agreement, such party shall promptly so notify the applicable Master Servicer. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim under an Environmental Insurance Policy shall be paid by the applicable Master Servicer and shall be reimbursable to it as a Servicing Advance. With respect to each Environmental Insurance Policy that relates to one or more Mortgage Loans, the applicable 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 in order to realize the full value thereof for the benefit of the Certificateholders in the event the applicable Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the applicable Master Servicer receives notice of any termination of any Environmental Insurance Policy that relates to one or more Mortgage Loans, such Master Servicer shall, within five Business Days after receipt of such notice, notify the applicable Special Servicer, the Controlling Class Representative, the Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the applicable Master Servicer shall address such termination in accordance with Section 3.07(a) in the same manner as it would the termination of any other Insurance Policy required under the related Mortgage Loan Documents. 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 applicable Master Servicer and shall be reimbursable to it as a Servicing Advance. (d) Each of the Master Servicers and Special Servicers shall at all times during the term of this Agreement (or, in the case of a Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties as to which it is the applicable Special Servicer exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Mxxxx'x, a fidelity bond in such form and amount as would permit it to be a qualified Fxxxxx Mxx seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). A Master Servicer or Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to such Master Servicer or Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicers and Special Servicers shall at all times during the term of this Agreement (or, in the case of a Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties as to which it is the applicable Special Servicer exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Mxxxx'x, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fxxxxx Mxx seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). A Master Servicer or Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to such Master Servicer or Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage, except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards, provided that the Servicer will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying RatingsServicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. Notwithstanding the foregoing, with respect to the Mortgage Loans which either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan reasonably requires from time to time in order to protect its interests, the Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (xB) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Servicer pursuant to clause (B) above. If the Special Servicer determines that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Servicer and the Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 Standards. In connection with its activities as administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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 Standards. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer is rated at least "A" by Moody's and S&X (xx, with respect to the required Moody's ratinx, xx xot rated by Moody's, then xx xxxst "A" by two other nationally recognized statistical rating organizations (which may include S&P)), the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by Fannie Mae or Xxxxxie Mac, xxxxxxxer is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due Fannie Mae or Xxxxxie Mac. Xxxxxxxe of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standards that any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use reasonable efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (ye) During all other insurance coverage (including but not limited such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to coverage for damage resulting from acts of terrorism) as is required or (subject be maintained, to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Pas THR Cer Ser 2002-C2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of The applicable Master Servicer (with respect to each Serviced Mortgage Loan or Serviced Loan Combination, Loan) and the Master Special Servicer (with respect to each Administered REO Property) shall use reasonable efforts to require the related Mortgagor to maintain or, consistent with the Servicing Standard and to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled Trust has an insurable interest and the subject coverage, except as provided below with respect to reasonably requireinsurance against terrorist or similar acts, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and rates, otherwise cause to be maintained for each Mortgaged Property all insurance coverage as is required under the Trustee has an insurable interest; (B) related Mortgage; provided that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the applicable Master Servicer shall exercise such discretion in a manner consistent with the Servicing Standard (and, to the extent consistent with the Servicing Standard, may take into account the insurance in place at the closing of the subject Serviced Mortgage Loan); and provided, further, that, required insurance coverage obtained by the applicable Master Servicer shall be from Qualified Insurers. The cost of any such insurance coverage obtained by either the applicable Master Servicer or the Special Servicer shall be a Servicing Advance to be paid by the applicable Master Servicer pursuant to Section 3.03. The Majority Controlling Class Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Controlling Class Certificateholder, to the extent that the Trust has an insurable interest; provided that neither the applicable Master Servicer nor the Special Servicer shall be obligated to obtain at the expense of the Trust earthquake or environmental insurance for any Mortgaged Property securing a Serviced Mortgage Loan unless (i) use efforts consistent it was in effect at the Closing Date or (ii) is required under the related loan documents and is available at commercially reasonable rates. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each Administered REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the applicable Master Servicer or the Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an Administered REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Serviced Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of Administered REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (A) the full replacement cost of the improvements on the subject Mortgaged Property or Administered REO Property, as applicable, or (B) the outstanding principal balance owing on the related Serviced Mortgage Loan or REO Mortgage Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Serviced Mortgage Loan documents); (vi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Serviced Mortgage Loan document; and (vii) in each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the applicable Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or Administered REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in, as applicable, the applicable Master Servicer's Collection Account, subject to withdrawal pursuant to Section 3.05(a), or any related SLC Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of a Serviced Mortgage Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an Administered REO Property. Any cost incurred by the applicable Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Serviced Mortgage Loan, notwithstanding that the terms of the related Serviced Mortgage Loan so permit. Notwithstanding the foregoing, subject to Section 6.11, Section 6.12 and Section 6.13, in each case as and if applicable, no Master Servicer or Special Servicer will 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, fire and extended perils casualty insurance which does not contain any carve-out for terrorist or similar acts, if and only if, the Special Servicer, in consultation with the Controlling Class Representative, has determined in accordance with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related subject Mortgaged Property and located in or around the region in which the related subject Mortgaged Property is located;; provided, however, that the Controlling Class Representative shall not have more than three (3) Business Days to respond to the Special Servicer's request for consultation; and 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, the Special Servicer shall not be required to do so; and provided, further, that, during the period that the Special Servicer is evaluating such insurance hereunder, the applicable 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 applicable Master Servicer of each determination under this paragraph. (b) If a Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or force placed policy insuring against hazard losses on all of the Serviced Mortgage Loans and/or Administered REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, then such Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or Administered REO Properties. Each Master Servicer and the Special Servicer shall bear the cost of any premium payable in respect of such blanket policy obtained by it (other than blanket policies specifically obtained for Mortgaged Properties or Administered REO Properties) without right of reimbursement; provided that if a Master Servicer or the Special Servicer, as the case may be, causes any Mortgaged Property or Administered REO Property to be covered by such blanket policy, the incremental costs of such insurance applicable to such Mortgaged Property or Administered REO Property shall constitute, and be reimbursable as, a Servicing Advance to the extent that, except with respect to an Administered REO Property, such blanket policy provides insurance that the related Mortgagor has failed to maintain. Such blanket policy or force placed policy may contain a deductible clause (not in excess of a customary amount), in which case the applicable Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or Administered REO Property

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of Mortgage Loans and the Serviced Whole Loans (other than Specially Serviced Mortgage Loans and Non-Serviced Mortgage Loans)) and the Special Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Special Servicer, as applicable, provided that any such determination that such insurance is not available at commercially reasonable terms, subject to Section 3.24(g) shall be consented to by the Majority Certificateholder of the Controlling Class); provided, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with the Servicing Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or Serviced Loan Combination, REO Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policyServicer, which does not provide for reduction due shall be entitled to depreciationrely on an opinion of counsel or insurance consultants in making such determination, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combinationprovided that, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that , such final determination shall be consented to by the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all Majority Certificateholder of the following conditions and/or limitations shall apply: Controlling Class) obtain such insurance (Awhich may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer shall not be required to maintain any earthquake in obtaining advice of counsel or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless consultants) of such insurance policy was (or in effect at the time case of a master or single interest policy, the origination incremental cost (including any deductible relating to such insurance) of such Serviced Mortgage Loan or Serviced Loan Combination insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05(g). If the terms Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the related Mortgage Loan Documents and applicable insurance is not available at commercially reasonable rates terms, the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Trustee Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan serviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has an insurable interest; been made available), the Master Servicer (Bor in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that any Serviced the Mortgage Loan or Serviced Whole Loan Combination grants requires the lender thereunder any discretion (by way of consentMortgagor or permits the mortgagee to require the Mortgagor to do so, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain a flood insurance policy meeting the requisite requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage from Qualified Insurers thatavailable under the National Flood Insurance Act of 1968, in each casethe Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably requireas amended, subject to applicable law, under unless otherwise specified by the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any or Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Whole

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2006-C1 Trust)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan or Loans) and the Special Servicer (with respect to Specially Serviced Loan CombinationMortgage Loans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer or Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard; and provided, further, that, if and to the extent that a Mortgage so permits, the Master Servicer or Special Servicer, as the case may be, shall use reasonable best efforts to require the related Mortgagor to obtain the required insurance coverage from Qualified Insurers that have a "claims paying ability" or "financial strength" rating, as applicable, of at least "A2" from Xxxxx'x (if then rated by Xxxxx'x, and if not rated by Xxxxx'x, then at least "A:VIII" or better from A.M. Best Company) use efforts and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency). Any Controlling Class 105 Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties by the related Mortgagor, to the extent such insurance may reasonably be obtained and provided the related loan documents and applicable law give the mortgagee the right to request such insurance coverage and such loan documents require the Mortgagor to obtain earthquake insurance at the request of the mortgagee. Subject to Section 3.17(a), the Special Servicer, in accordance with the Servicing Standard, shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a "claims paying ability" or "financial strength" rating, as applicable, of at xxxxx "X0" from Xxxxx'x and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency). All such insurance policies shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans, including Specially Serviced Mortgage Loans), and shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; and, in each case, such insurance shall be issued by a Qualified Insurer. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Custodial Account in accordance with Section 3.04(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account in accordance with Section 3.16(b), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance (including any earthquake insurance maintained at the request of a Controlling Class Certificateholder) shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan or REO Loan, notwithstanding that the terms of such loan so permit, but shall be recoverable by the Master Servicer and the Special Servicer as a Servicing Advance. (b) If either the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having (or whose obligations are guaranteed or backed, in writing, by an entity having) a "claims paying ability" or "financial strength" rating, as applicable, of at least "A2" from Xxxxx'x (if then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then at least "A:VIII" from A.M. Best Company) and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency), and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property an individual hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such individual policy, promptly deposit into the Custodial Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall 106 prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee or insured, as applicable, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses (or whose obligations are guaranteed or backed, in writing, by an entity having) a "claims paying ability" or "financial strength" rating, as applicable, of at least "A2" from Xxxxx'x (if then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then at least "A:VIII" from A.M. Best Company) and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency) and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under terms of the related Mortgage Loan Documents; documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (Dincluding, any minimum or standby premium payable for such policy) in no event shall be borne by the Master Servicer be required to cause or Special Servicer, as the Borrower under any Serviced Mortgage Loan to maintaincase may be, or itself obtainwithout right of reimbursement. Such master single interest policy may contain a deductible clause (not in excess of a customary amount), insurance coverage that in which case the Master Servicer has determined is either (i) or the Special Servicer, as appropriate, shall, if there shall not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to have been maintained on the related Mortgaged Property or REO Property an individual hazard insurance policy complying with the requirements of Section 3.07(a), and located there shall have been one or more losses that would have been covered by such individual policy, promptly deposit into the Custodial Account from its own funds the amount not otherwise payable under the master single interest policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such master single interest policy in or around a timely fashion in accordance with the region terms of such policy. (c) Subject to the third paragraph of this Section 3.07(c), each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties are part of the related Mortgaged Property is located;Trust Fund) keep in force with Qualified Insurers having (or whose obligations are guaranteed or backed, in writing, by entities having) a "claims paying ability" or "financial strength" rating, as applicable, of at least "Baa3" from Xxxxx'x (if then rated by Xxxxx'x, and if not rated by Xxxxx'x, then at least "A:VIII" from A.M. Best Company) and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency), a fidelity bond, which fidelity bond shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause an Adverse Rating Event (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Subject to the third paragraph of this Section 3.07(c), each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties are part of the Trust Fund) also keep in force with Qualified Insurers having (or whose obligations are guaranteed or backed, in writing, by entities having) a "claims paying ability" or "financial strength" rating, as applicable, of at least "Baa3" from Xxxxx'x (if then rated by Xxxxx'x, and if not rated by Xxxxx'x, then at least "A:VIII" from A.M. Best Company) and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency), a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause an Adverse Rating Event (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Notwithstanding the foregoing, for so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or, in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at xxxxx "X0" from Xxxxx'x (if then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then an equivalent rating by at least one additional nationally recognized statistical rating agency besides S&P) and "A" from S&P (or, in the case of either Rating Agency, such lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency), such Person may self-insure with respect to the risks described in this Section 3.07(c).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificates Series 2000-C4)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related each Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage from Qualified Insurers, and, if such the Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower is required to obtain the requisite insurance coveragemaintain, the such Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts exercise such discretion in a manner consistent with the Servicing Standard (taking into account the insurance in place at the closing of the related Mortgage Loan), with a view towards requiring insurance comparable to cause that required under other Mortgage Loans with express provisions governing such matters and, in any event, business interruption or rental loss insurance for at least 12 months; and provided, further, that, if and to the extent that any such Mortgage so permits, the related Borrower shall be required to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A2" from Moody's (or in such other form and amount or issued by an insurer witx xxxx other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event); and provided, further, that such Master Servicer shall be required to maintain such insurance coverage upon the related Borrower's failure to do so only to the extent that (i) the Trustee as mortgagee has an insurable interest, (ii) such insurance is obtained; available at commercially reasonable rates (Cas determined by the Special Servicer and approved by the Controlling Class Representative, subject to Section 3.24(b)) and (iii) any related Servicing Advance is deemed by the Master Servicer to be recoverable from collections on the related Mortgage Loan; provided, that if such Servicing Advance is deemed nonrecoverable the Master Servicer (or, at the direction of the Special Servicer if a Specially Serviced Mortgage Loan or an REO Property is involved) shall pay such amounts out of the applicable Collection Account provided, further, that the Master Servicer (or the Special Servicer, if a Specially Serviced Mortgage Loan or an REO Property is involved) has determined in accordance with the Servicing Standard that making such payment is in the best interests of the Certificateholders (as a collective whole), as evidenced in each case by any Officer's Certificate delivered promptly to the Trustee, the Depositor and the Controlling Class Representative, setting forth the basis for such determination and accompanied by any information that such Person may have obtained that supports such determination. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage (to the extent available at commercially reasonable rates, as determined by the Special Servicer with the consent of the Controlling Class Representative, subject to Section 3.24(b)) than was previously required of the Borrower under the related Mortgage and, at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided that all such insurance shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A2" from Moody's (or in such other form and amount or issued by an insurer witx xxxx other financial strength or claims-paying ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event). All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans), or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account or any related A/B Loan Pair Custodial Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of the Master Servicer on behalf of the Trust to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to the Master Servicer or the Special Servicer of maintaining insurance policies and enforcing the obligations of Borrowers pursuant to this Section 3.07 shall be paid by and reimbursable to such Master Servicer or Special Servicer, as applicable, as a Servicing Advance. Subject to the preceding paragraph, the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent with the Servicing Standard to cause the Borrower under to maintain or, if the Borrower does not so maintain, the Master Servicer will maintain all-risk casualty insurance or extended coverage insurance (with special form coverage) (the cost of which will be payable as a Servicing Advance), which does not contain any Serviced carve-out for terrorist or similar acts; provided, however, the Master Servicer shall not require any Borrower to obtain or maintain insurance in excess of the amounts of coverage and deductibles required by the related Mortgage Loan Documents or the related Mortgage Loan Seller in connection with the origination of a Mortgage Loan unless such Master Servicer determines, in accordance with the Servicing Standard, that such insurance required at origination would not be prudent for Mortgaged Property of the same type as the related Mortgaged Property. The Master Servicer shall not be required to call a default under a Mortgage Loan if the related Borrower fails to maintain such insurance, and the insurance Master Servicer shall not be required to be maintained or maintain such insurance, to the extent, if any, that the lender cost of such insurance exceeds the maximum cost that the related Borrower is entitled required to reasonably require, subject to applicable law, incur under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that if the Master Special Servicer has determined is in accordance with the Servicing Standard that either (i) not available at any rate or (ii) such insurance is not available at commercially reasonable rates and the related or that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related such Mortgaged Property is located;located (which determination shall be subject to the approval of the Controlling Class Representative, subject to the limitations of Section 3.24(b)), or (ii) such insurance is not available at any rate.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of Mortgage Loans (including the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage Loan and Specially Serviced Mortgage Loans) and the Special Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Special Servicer, as applicable); provided, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with the Servicing Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or Serviced Loan CombinationREO Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer, which shall be entitled to rely (at its own expense) on an opinion of counsel or insurance consultants in making such determination) obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer in obtaining advice of counsel or insurance consultants) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If the Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the applicable insurance is not available at commercially reasonable terms, the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan serviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain a flood insurance policy meeting the requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by the related Mortgage Loan (including identifying the extent Xxxxxxxx Fashion Center A/B Loan). With respect to which a Borrower is maintaining insurance coverage andany Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage Loan), if (i) the Mortgagor is required by the terms of the Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) to maintain such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (or in the case of a Specially Serviced Mortgage Loan or Serviced Loan CombinationLoan, butthe Special Servicer) shall obtain such insurance, in any eventthe cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a); provided, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided, further, if the Master Servicer or environmental insurance policy on any Special Servicer, as applicable, shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property securing a Serviced and (ii) would be in the best interest of the Certificateholders (or with respect to the Xxxxxxxx Fashion Center A/B Loan, the Certificateholders and the Xxxxxxxx Fashion Center Companion Holders), then the Master Servicer shall make such payment from amounts in the Certificate Account or, with respect to the Xxxxxxxx Fashion Center A/B Loan, from the Xxxxxxxx Fashion Center Custodial Account. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan or Serviced Loan Combination unless as is consistent with the Servicing Standard. All such insurance policy was policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in effect at the time case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the origination Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of such Serviced Mortgage Loan the related Mortgaged Property or Serviced Loan Combination pursuant REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates (including the Xxxxxxxx Fashion Center A/B Loan) documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account or, with respect to the Xxxxxxxx Fashion Center A/B Loan, deposited in the Xxxxxxxx Fashion Center Custodial Account, subject to withdrawal pursuant to Section 3.05(a) or Section 3.05(e), respectively, in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan), notwithstanding that the terms of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a)or 3.05(e), as applicable. (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise 134 required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account or, with respect to the Xxxxxxxx Fashion Center A/B Loan, deposited in the Xxxxxxxx Fashion Center Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect to the Xxxxxxxx Fashion Center A/B Loan, the Chandler Fashion Companion Holders), claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account or, with respect to the Xxxxxxxx Fashion Center A/B Loan, deposit into the Xxxxxxxx Fashion Center Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the related Borrower Trustee and the Certificateholders (and with respect to obtain the requisite Xxxxxxxx Fashion Center A/B Loan, the Chandler Fashion Companion Holders), claims under any such master force placed insurance coverage from Qualified Insurers that, policy maintained by it in each case, have a timely fashion in accordance with the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage 135 shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans, Xxxxxxxx Fashion Center Companion Loans and/or the REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause obtained from Qualified Insurers having a claims paying ability rating (or the Borrower under any Serviced Mortgage Loan to maintainobligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, or itself obtainas applicable) of not less than (x) "A" by Standard & Poor's and (y) "A2" by Xxxxx'x; provided, insurance coverage however, that the Master Servicer has determined is either requirements of clauses (ix) not available at any rate or (iiy) shall not available at commercially reasonable rates and be applicable with respect to Standard & Poor's or Xxxxx'x, as applicable, if the related hazards are Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not at result, in and of itself, in a downgrade, qualification or withdrawal of the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;then current ratings by such Rating Agency of any Class of Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Managed Units) and the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Special Servicer (with respect to Specially Managed Units) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Tenant or Borrower to maintain (including identifying the extent to which a Borrower is maintaining for each Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Lease or Mortgage Loan Documents and is available at commercially reasonable rates and Loan, as applicable (including for the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Tenant or Borrower is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent , with a view towards requiring insurance comparable to that required under other similar leases or mortgage loans with express provisions governing such matters; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Tenant or Borrower shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide. If such Tenant or Borrower does not maintain the required insurance or, with respect to any Environmental Policy in each caseplace as of the related Series Closing Date or Transfer Date, have the Required Claims-Paying Ratings at the time Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Property is located or (ii) such insurance is not available at any rate. The Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less property insurance coverage than was previously required of the Tenant or Borrower under the related Mortgaged Mortgage or Lease and at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A-:VIII” by A.M. Best’s Key Rating Guide. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.06(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Properties that it is required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.06(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Property or REO Property to be covered by such blanket policy, the incremental costs of such insurance applicable to such Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance to the extent that, except with respect to an REO Property, such blanket policy provides insurance that the related Tenant or Borrower, as applicable, has failed to maintain. If the Property Manager or Special Servicer, as applicable, causes any Property or REO Property to be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to such Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Property or REO Property is located;covered thereby) shall be paid as a Property Protection Advance. Such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Property or REO Property a hazard insurance policy complying with the requirements of Section 3.06(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer. The Back-Up Manager (whether as Back-Up Manager, Property Manager or Special Servicer) shall at all times during the term of this Agreement maintain insurance in conformity with market requirements and shall keep in force with a Qualified Insurer having a claims paying ability rated by at least one of the following Rating Agencies of at least (a) “A3” by Mxxxx’x, (b) “A-” by S&P, (c) “A-” by Fitch or (d) “A:X” by A.M. Best Company, Inc., (i) a fidelity bond (employee dishonesty insurance) in such form and amount as is consistent with the Servicing Standard, and (ii) a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as is consistent with the Servicing Standard. The Back-Up Manager shall cause any awards or other amounts payable under such policy or policies that result from the errors or omissions of its officers and employees in connection with its servicing obligations hereunder to be promptly remitted to the Indenture Trustee for application in accordance with the Indenture. The Back-Up Manager shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond and/or errors and omissions coverage and, by the terms of such fidelity bond and/or errors and omissions policy, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) also, on behalf of each Issuer, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes without giving effect to any Insurance Policy (as evidenced in writing from each Rating Agency). Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A” by S&P, the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that STORE Capital may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 1 contract

Samples: Indenture Agreement (STORE CAPITAL Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Performing Serviced Mortgage Loan or Serviced Loan CombinationLoan, the applicable Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan CombinationLoan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the applicable Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Performing Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates (and if the Trustee has applicable Master Servicer does not cause the Borrower 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 Mortgage Loan or on an insurable interestAdministered REO Property so long as such insurance is available at commercially reasonable rates); (B) if and to the extent that any Performing Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the applicable Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the applicable Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Performing Serviced Mortgage Loan 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; (D) in no event shall the applicable Master Servicer be required to cause the Borrower under any Performing Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the applicable Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property mortgaged property and located in or around the region in which the related Mortgaged Property is locatedlocated (in each case, as determined by the applicable Master Servicer, which shall be entitled to rely, at its own expense, on insurance consultants in making such determination) (and provided that any such determinations by the applicable Master Servicer must be made not less frequently (but 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); (E) the reasonable efforts of the applicable Master Servicer to cause the Borrower under any Performing Serviced Mortgage Loan to maintain insurance shall be conducted in a manner that takes into account the insurance that would then be available to the applicable Master Servicer on a force-placed basis; and (F) to the extent the applicable Master Servicer itself is required to maintain insurance that the Borrower under any Performing Serviced Mortgage Loan does not maintain, the applicable Master Servicer shall not be required to maintain insurance other than what is available to such Master Servicer on a force-placed basis (and this will not be construed to modify the other limits set forth in clause (D) above). Notwithstanding the limitation set forth in clause (D) above, the applicable Master Servicer shall, prior to availing itself of any limitation described in that clause with respect to any Performing Serviced Mortgage Loan that has a Stated Principal Balance in excess of $2,500,000, obtain the approval or disapproval of the Special Servicer (and, in connection therewith, the Special Servicer shall be required to comply with any applicable provisions of Section 3.24 and/or 3.27, if and as applicable). The applicable Master Servicer shall be entitled to rely on the determination of the Special Servicer made in connection with such approval or disapproval. The Special Servicer shall decide whether to withhold or grant such approval in accordance with the Servicing Standard. If any such approval has not been expressly denied within seven Business Days (or in the case of the Serviced Mortgage Loan Groups, such longer period of time, if any, that is provided in or pursuant to Section 3.24 and/or 3.27, if and as applicable) of the Special Servicer's receipt from the applicable Master Servicer of such Master Servicer's determination and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such approval shall be deemed to have been granted. The applicable Master Servicer shall notify the Special Servicer, the Trustee, the Controlling Class Representative and (if a Serviced Mortgage Loan Group is involved) the related Serviced Non-Pooled Mortgage Loan Noteholder, if the applicable Master Servicer determines that the Borrower under any Performing Serviced Mortgage Loan has failed to maintain insurance required under (or that such Master Servicer has required pursuant to a provision that entitles the lender to reasonably require insurance under) the related Mortgage Loan Documents and such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property or if the Borrower under any Performing Serviced Mortgage Loan has notified the applicable Master Servicer in writing that the Borrower does not intend to maintain such insurance and the applicable Master Servicer has determined that such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage (other than earthquake insurance) as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintaininsurance, the Master Servicer will itself cause or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall (to the extent available at commercially reasonable rates) obtain such insurance (which may be maintained with Qualified Insurers having through a master or single interest policy), and the Required Claims-Paying Ratingscost (including any deductible relating to such insurance) for of such insurance (or in the related Mortgaged Property (x) case of a fire and casualty extended coverage insurance master or single interest policy, which does not provide for reduction due the incremental cost (including any deductible relating to depreciation, in an amount that is at least equal such insurance) of such insurance relating to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combinationspecific Mortgaged Property), but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall be a Servicing Advance (subject to the Servicing Standardlimitations set forth in Section 4.2(a)) that recoverable by the lender Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, pursuant to Section 5.2. If at any time a Mortgaged Property is entitled to reasonably requirelocated in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) then upon the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a the Special Servicer becoming aware of such fact (using efforts consistent with the Servicing Standard), the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) Loans, shall, if and to the extent that any Serviced the Mortgage Loan requires the Mortgagor or Serviced Loan Combination grants permits the lender thereunder any discretion (by way of consentMortgagee to require the Mortgagor to do so, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage of not less than the least of (i) the unpaid principal balance of the related Mortgage Loan, (ii) the full insurable value of such Mortgaged Property, (iii) the maximum amount of insurance coverage available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, and (iv) 100% of the replacement cost of the improvements on such Mortgaged Property. If (i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property becoming located in such area by virtue of such remapping) or (ii) the terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain the requisite insurance coverage from Qualified Insurers thatsuch insurance, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no promptly notify the Mortgagor of its obligation beyond using its reasonable efforts consistent with to obtain such insurance. If the Servicing Standard Mortgagor fails to cause obtain such flood insurance within 120 days of such notification, the Borrower under any Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loan Loans, shall obtain such insurance (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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not extent available at commercially reasonable rates rates), and the related hazards are not at cost of such insurance shall be a Servicing Advance recoverable by the time commonly insured against at Master Servicer, or the then-available rates for properties similar Special Servicer in the case of Specially Serviced Mortgage Loans, pursuant to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Section 5.2.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage (other than earthquake insurance) as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintaininsurance, the Master Servicer will itself cause or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall (to the extent available at commercially reasonable rates) obtain such insurance (which may be maintained with Qualified Insurers having through a master or single interest policy), and the Required Claims-Paying Ratingscost (including any deductible relating to such insurance) for of such insurance (or in the related Mortgaged Property (x) case of a fire and casualty extended coverage insurance master or single interest policy, which does not provide for reduction due the incremental cost (including any deductible relating to depreciation, in an amount that is at least equal such insurance) of such insurance relating to the lesser of (ispecific Mortgaged Property) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall be a Servicing Advance (subject to the Servicing Standardlimitations set forth in Section 4.2(a)) that recoverable by the lender Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, pursuant to Section 5.2. If at any time a Mortgaged Property is entitled to reasonably requirelocated in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) then upon the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a the Special Servicer becoming aware of such fact (using efforts consistent with the Servicing Standard), the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) Loans, shall, if and to the extent that any Serviced the Mortgage Loan requires the Mortgagor or Serviced Loan Combination grants permits the lender thereunder any discretion (by way of consentMortgagee to require the Mortgagor to do so, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage of not less than the least of (i) the unpaid principal balance of the related Mortgage Loan, (ii) the full insurable value of such Mortgaged Property, (iii) the maximum amount of insurance coverage available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, and (iv) 100% of the replacement cost of the improvements on such Mortgaged Property. If (i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property becoming located in such area by virtue of such remapping) or (ii) the terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain the requisite insurance coverage from Qualified Insurers thatsuch insurance, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall obtain such insurance (to the extent available at commercially reasonable rates), and the cost of such insurance shall be a Servicing Advance recoverable by the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, pursuant to Section 5.2. The Special Servicer shall cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage. All such insurance policies shall contain a "standard" mortgagee clause or shall identify the Trustee as the named insured, as applicable, with any loss payable to the Master Servicer (in the case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the Trustee. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan documents and the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 5.2. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a blanket insurance policy, which provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer will conclusively be deemed to have no obligation beyond using satisfied its reasonable efforts respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, will 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 8.5(a), and (ii) a loss occurs that would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. 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 insurance policy maintained by it in a timely fashion in accordance with the terms of such policy. The incremental cost of such insurance allocable to any Mortgaged Property or REO Property, if not borne by the Mortgagor, will be paid by the Master Servicer as a Servicing Advance. (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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Borrower Master Servicers 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 8.5(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 (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any Serviced 113 such master force placed insurance policy maintained by it in a timely fashion in accordance with the terms of such policy. The incremental cost of such insurance allocable to any Mortgaged Property or REO Property, if not borne by the Mortgagor, will be paid by the Master Servicer as a Servicing Advance. (c) Each of the Master Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loan to maintain Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 8.5(c) shall satisfy the requirements of this Section 8.5(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or the Special Servicer under this Section 8.5 shall be required to cause obtained from Qualified Insurers (A) whose claims-paying ability is rated (or the Borrower under obligations of which are guaranteed or backed by a company having such claims paying ability or rating) at least "A" or its equivalent (or, in the case of a blanket hazard policy obtained in accordance with Section 8.5(b), rated in one of the two highest ratings categories) by any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate two Rating Agencies or (iiB) not available at commercially reasonable rates and who are (as evidenced by the related hazards are not at the time commonly insured against at the then-available rates for properties similar receipt of Rating Agency Confirmation) otherwise acceptable to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;each Rating Agency.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans and to the extent that the Trust Fund has an insurable interest) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with be from Qualified Insurers. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to be paid by the Master Servicer pursuant to Section 3.03. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect any Specially Serviced Mortgage Loan Loan) and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if and only if, the Master Servicer Special Servicer, in consultation with the Controlling Class Representative, and, with respect to each AB Mortgage Loan, in consultation with the related AB Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located; provided, however, the Controlling Class Representative shall not have more than three Business Days to respond to the Special Servicer's request for consultation; 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, with respect to the Starrett-Lehigh Building Whole Loan, the Starrett-Lehigh Building Representative), 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. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mort Pass THR Certs Ser 2004-C10)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Serviced Assets) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Assets) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Obligor to maintain (including identifying the extent to which a Borrower is maintaining for each Mortgaged Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of such Lease or Mortgage Loan, as applicable (including for the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such Lease permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Obligor is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent , with a view towards requiring insurance comparable to that required under other similar Leases or Mortgage Loans with express provisions governing such matters; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Borrower Obligor shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide. If such Obligor does not maintain the required insurance or, with respect to any Environmental Policy in each caseplace as of the related Series Closing Date or Transfer Date, have the Required Claims-Paying Ratings at the time Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located or (ii) such insurance is not available at any rate. Subject to Section 3.17(b), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less insurance coverage than was previously required of the Obligor under the related Mortgage or Lease and at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A-:VIII” by A.M. Best’s Key Rating Guide. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.07(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Mortgaged Properties that it is located;required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.07(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Mortgaged Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Mortgaged Property or REO Property to be covered by such blanket policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance to the extent that, except with respect to an REO Property, such blanket policy provides insurance that the related Borrower or Tenant, as applicable, has failed to maintain. If the Property Manager or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a 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 Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Protection Advance. Such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes without giving effect to any Insurance Policy (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers and each Insurer. Each of the Property Manager, the Special Servicer and the Back-up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes without giving effect to any Insurance Policy (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers and each Insurer. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also, on behalf of the Issuers, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes without giving effect to any Insurance Policy (as evidenced in writing from each Rating Agency). Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers, each Insurer and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch (or each Insurer consents in writing), the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that Spirit Finance may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 1 contract

Samples: Property Management and Servicing Agreement (Spirit Finance Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Performing Serviced Mortgage Loan or Serviced Loan CombinationLoan, the applicable Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan CombinationLoan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the applicable Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Performing Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates (and if the Trustee has applicable Master Servicer does not cause the Borrower 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 Mortgage Loan or on an insurable interestAdministered REO Property so long as such insurance is available at commercially reasonable rates); (B) if and to the extent that any Performing Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the applicable Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the applicable Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Performing Serviced Mortgage Loan 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; (D) in no event shall the applicable Master Servicer be required to cause the Borrower under any Performing Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the applicable Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property mortgaged property and located in or around the region in which the related Mortgaged Property is locatedlocated (in each case, as determined by the applicable Master Servicer, which shall be entitled to rely, at its own expense, on insurance consultants in making such determination) (and provided that any such determinations by the applicable Master Servicer must be made not less frequently (but 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); (E) the reasonable efforts of the applicable Master Servicer to cause the Borrower under any Performing Serviced Mortgage Loan to maintain insurance shall be conducted in a manner that takes into account the insurance that would then be available to the applicable Master Servicer on a force-placed basis; and (F) to the extent the applicable Master Servicer itself is required to maintain insurance that the Borrower under any Performing Serviced Mortgage Loan does not maintain, the applicable Master Servicer shall not be required to maintain insurance other than what is available to such Master Servicer on a force-placed basis (and this will not be construed to modify the other limits set forth in clause (D) above). Notwithstanding the limitation set forth in clause (D) above, the applicable Master Servicer shall, prior to availing itself of any limitation described in that clause with respect to any Performing Serviced Mortgage Loan that has a Stated Principal Balance in excess of $2,500,000, obtain the approval or disapproval of the Special Servicer (and, in connection therewith, the Special Servicer shall be required to comply with any applicable provisions of Section 3.24). The applicable Master Servicer shall be entitled to rely on the determination of the Special Servicer made in connection with such approval or disapproval. The Special Servicer shall decide whether to withhold or grant such approval in accordance with the Servicing Standard. If any such approval has not been expressly denied within seven Business Days of the Special Servicer's receipt from the applicable Master Servicer of such Master Servicer's determination and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such approval shall be deemed to have been granted. The applicable Master Servicer shall notify the Special Servicer, the Trustee, the Controlling Class Representative and (if a Serviced Mortgage Loan Group is involved) the related Serviced Non-Pooled Mortgage Loan Noteholder, if the applicable Master Servicer determines that the Borrower under any Performing Serviced Mortgage Loan has failed to maintain insurance required under (or that such Master Servicer has required pursuant to a provision that entitles the lender to reasonably require insurance under) the related Mortgage Loan Documents and such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property or if the Borrower under any Performing Serviced Mortgage Loan has notified the applicable Master Servicer in writing that the Borrower does not intend to maintain such insurance and the applicable Master Servicer has determined that such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property. Subject to Section 3.17(b) and/or Section 3.24, as applicable, with respect to each Specially Serviced Mortgage Loan and Administered REO Property, the Special Servicer shall use reasonable efforts, consistent with the (a) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Mortgage Loan or at such REO Property or (ii) the outstanding principal balance of such Mortgage Loan or the related REO Mortgage Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause, (b) a comprehensive general liability insurance policy with coverage comparable to that which would be required under prudent lending requirements and in an amount not less than $1 million per occurrence and (c) to the extent consistent with the Servicing Standard, a business interruption or rental loss insurance covering revenues or rents for a period of at least twelve (12) months or, with respect to Mortgage Loans with initial principal balances greater than $35 million, at least eighteen (18) months, in each case if so required pursuant to the related Mortgage Loan Documents; provided, however, that neither the applicable Master Servicer nor the Special Servicer shall be required in any event to maintain or obtain the insurance coverage otherwise described by this paragraph beyond what is available at commercially reasonable rates and consistent with the Servicing Standard. All such insurance policies maintained as described above shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee, in the case of insurance maintained in respect of a Serviced Mortgage Loan, or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee, in the case of insurance maintained in respect of an Administered REO Property. Any amounts collected by a Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account of the applicable Master Servicer, a related Companion Note Custodial Account and/or a related Subordinate Note Custodial Account, as appropriate in accordance with Section 3.04, subject to withdrawal pursuant to Section 3.05, in the case of amounts received in respect of a Serviced Mortgage Loan, or in the REO Account of the Special Servicer, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an Administered REO Property. Any cost incurred by a Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of a Master Servicer or the Special Servicer on behalf of the Trust (and, if applicable, the Serviced Non-Pooled Mortgage Loan Noteholders) to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to a Master Servicer or the Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall (subject to Section 3.11(h) and Section 3.19(b)) be paid by, and reimbursable to, such Master Servicer or Special Servicer, as the case may be, as a Servicing Advance. (b) If (i) a Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force-placed policy insuring against hazard losses on all of the Serviced Mortgage Loans or Administered REO Properties, as applicable, as to which it is the applicable Master Servicer or the Special Servicer, as the case may be, then, to the extent such policy (A) is obtained from a Qualified Insurer having the Required Claims-Paying Ratings, and (B) provides protection equivalent to the individual policies otherwise required herein and in the Mortgage Loan Documents or (ii) a Master Servicer or the Special Servicer has long-term unsecured debt obligations that are rated not lower than "A2" by Xxxxx'x and "A" by Fitch and such Master Servicer or the Special Servicer, as the case may be, self-insures for its obligation to maintain, and deposits into its Collection Account (any such deposit to be deemed to constitute "Insurance Proceeds") the amount of any loss to the Trust that would have been covered by, the individual policies otherwise required, such Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such a blanket or master force-placed policy may contain a deductible clause (not in excess of a customary amount), in which case the applicable Master Servicer or the Special Servicer, as the case may be, whichever maintains such policy, shall, if there shall not have been maintained on any Mortgaged Property securing a Serviced Mortgage Loan or any Administered REO Property thereunder a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the applicable Collection Account (or, to the extent the loss affects a related Serviced Non-Pooled Mortgage Loan Noteholder, in the related Companion Note Custodial Account or Subordinate Note Custodial Account, as applicable) maintained by the applicable Master Servicer, from its own funds without any right of reimbursement from the Trust, the amount not otherwise payable under the blanket or master force-placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Serviced 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). The Master Servicers and the Special Servicer shall each prepare and present, on behalf of itself, the Trustee and Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan Noteholders, claims under any such blanket or master force-placed policy maintained by it in a timely fashion in accordance with the terms of such policy.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such insurance coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by S&P and DCR, the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standard that any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use reasonable efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (ye) During all other insurance coverage (including but not limited such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to coverage for damage resulting from acts of terrorism) as is required or (subject be maintained, to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chase Commercial Mort Sec Corp Com Mor Pa Th Ce Ser 2000-1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans to the case of each extent that the Trust Fund has an insurable interest, but other than the 2005-C19 Serviced Mortgage Loan, the LB-UBS 2005-C3 Serviced Mortgage Loan, the MSCI 2005-HQ6 Serviced Mortgage Loan or Serviced Loan Combinationand their related Companion Loans) and the Special Servicer (with respect to REO Properties to the extent that the Trust Fund has an insurable interest) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent be from Qualified Insurers. REO Property with respect to the Servicing Standard to cause the Borrower under any Non-Serviced Mortgage Loans is excluded for all purposes of this Section 3.07. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Advance to be paid by the Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a), the insurance required Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if and only if the Master Servicer with respect to non-Specially Serviced Mortgage Loans or the Special Servicer with respect to Specially Serviced Mortgage Loans, in consultation with the Controlling Class Representative, and, with respect to each Co-Lender Loan (other than the Non-Serviced Mortgage Loans), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the borrower to maintain terrorism insurance (provided, that the decision of the Controlling Class Representative to grant or withhold such consent shall be disregarded by the Special Servicer if such consent or lack of consent would cause the Master Servicer or the Special Servicer, as applicable, to violate the Servicing Standard); provided, however, the Controlling Class Representative's approval shall be deemed to have been given if it has not responded within five Business Days of receipt of the Master Servicer's or the Special Servicer's written recommendation and the information upon which such recommendation is based; provided, further, that upon the Master Servicer's or the Special Servicer's determination, as applicable, consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or the Special Servicer to consult with the Controlling Class Representative or Companion Holder, if applicable, the Master Servicer or the Special Servicer, as applicable, shall not be required to do so. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage, except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards, provided that the Servicer will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying RatingsServicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. Notwithstanding the foregoing, with respect to the Mortgage Loans which either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan reasonably requires from time to time in order to protect its interests, the Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (xB) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Servicer pursuant to clause (B) above. If the Special Servicer determines that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Servicer and the Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer is rated at least "A" by Moody's and Fitch, the Servicer shall be allowed to provide self-insuraxxx xxxh respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by Fannie Mae or Freddie Mac, whichever is greater, with respect to the Sexxxxxx or the Xxxxxxx Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due Fannie Mae or Freddie Mac. Coverage of the Servicer or the Special Servxxxx xnder a pxxxxx xr bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standard that any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use reasonable efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (ye) During all other insurance coverage (including but not limited such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to coverage for damage resulting from acts of terrorism) as is required or (subject be maintained, to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Pas THR CRT Ser 2002 Cibc5)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts (with respect to Mortgage Loans and Companion Loans to the extent that the Trust Fund has an insurable interest and the Special Servicer (with respect to REO Properties to the extent that the Trust Fund has an insurable interest) shall, consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with be from Qualified Insurers. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to cause be paid by the Borrower under any Serviced Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a), the insurance required Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if and only if the Master Servicer with respect to non-Specially Serviced Mortgage Loans or the Special Servicer with respect to Specially Serviced Mortgage Loans, in consultation with the Controlling Class Representative, and, with respect to each Co-Lender Loan, in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the borrower to maintain terrorism insurance (provided, that the decision of the Controlling Class Representative to grant or withhold such consent shall be disregarded by the Special Servicer if such consent or lack of consent would cause the Master Servicer or the Special Servicer, as applicable, to violate the Servicing Standard); provided, however, the Controlling Class Representative's approval shall be deemed to have been given if it has not responded within five Business Days of receipt of the Master Servicer's or the Special Servicer's written recommendation and the information upon which such recommendation is based; provided, further, that upon the Master Servicer's or the Special Servicer's determination, as applicable, consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or the Special Servicer to consult with the Controlling Class Representative or Companion Holder, if applicable, the Master Servicer or the Special Servicer, as applicable, shall not be required to do so. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Servicer or the case of each Serviced Mortgage Loan or Serviced Loan CombinationSpecial Servicer, the Master Servicer as applicable, shall use reasonable its efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage, except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer or the Special Servicer, as applicable, shall impose such insurance requirements as are consistent with the Servicing Standards, provided that, with respect to the immediately preceding proviso, the Servicer or the Special Servicer, as applicable, will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying RatingsServicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. Notwithstanding the foregoing, with respect to the Mortgage Loans which either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan reasonably requires from time to time in order to protect its interests, the Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (xB) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the Servicing Standards that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Servicer and the Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding stated principal balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans, including the One Post Office Square Whole Loan, or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including the One Post Office Square Whole Loan, or in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standards. In connection with its activities as administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest policy because of such deductible clause, to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including the One Post Office Square Whole Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standards. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer or the Special Servicer, as applicable, is rated at least "A2" by Moody's and "A" by S&P, the Servicer or the Special Servixxx, xx xpplicxxxx, xhall be allowed to provide for reduction due self-insurance with respect to depreciationa fidelity bond and an Errors and Omissions Insurance Policy. Such amount of coverage shall be in such form and amount as are consistent with the Servicing Standards. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standards that any Mortgaged Property is in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use efforts consistent with the Servicing Standards to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (ye) During all other insurance coverage (including but not limited such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to coverage for damage resulting from acts of terrorism) as is required or (subject be maintained, to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Ps THR Certs Ser 2003-Ln1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, that have the Required Claims-Paying Ratings a "claims paying ability" rating of at the time such least "A" from Standard & Poor's and a comparable rating from at least one other nationally recognized statistical rating agency. The Majority Subordinate Certificateholder may request that earthquake insurance coverage is obtained; (C) be secured by the Master Servicer or the Special Servicer, as applicable, for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to also cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that for each REO Property no less insurance coverage than was previously required of the lender is entitled to reasonably require, subject to applicable law, Mortgagor under the related Mortgage Loan Documents; Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims paying ability rating of at least "A" and "A2" from Standard & Poor's and Moody's, respectively (Dif then rated by Moody's) (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not rated by Moody's) or such lower rating as will not result in no event qualification, downgrading or withdrawal of the ratings then assigned to the Certificates, as evidenced in writing by the Rating Agencies. All such insurance policies shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans), and shall be required in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trust Fund; in each case such insurance shall be issued by an insurer authorized under applicable law to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating of "A" and "A2" or better from Standard & Poor's and Moody's, respectively (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not rated by Moody's) or such lower rating of any Rating Agency or rating from any other nationally recognized statistical rating agency 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, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property is located;or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force with Qualified Insurers a fidelity bond issued by an insurer having a claims-paying rating of "A" and "Aa3" or better from Standard & Poor's and Moody's (if then rated by Moody's) respectively, or such lower rating of any Rating Agency or rating from any other nationally recognized statistical rating agency 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, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers having a claims-paying rating of "A" and "Aa3" or better from Standard & Poor's and Moody's 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, respectively, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be, are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Performing Serviced Mortgage Loan or Serviced Loan CombinationLoan, the applicable Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan CombinationLoan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the applicable Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Performing Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates (and if the Trustee has applicable Master Servicer does not cause the Borrower 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 Mortgage Loan or on an insurable interestAdministered REO Property so long as such insurance is available at commercially reasonable rates); (B) if and to the extent that any Performing Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the applicable Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the applicable Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Performing Serviced Mortgage Loan 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; (D) in no event shall the applicable Master Servicer be required to cause the Borrower under any Performing Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the applicable Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property mortgaged property and located in or around the region in which the related Mortgaged Property is locatedlocated (in each case, as determined by the applicable Master Servicer, which shall be entitled to rely, at its own expense, on insurance consultants in making such determination) (and provided that any such determinations by the applicable Master Servicer must be made not less frequently (but 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); (E) the reasonable efforts of the applicable Master Servicer to cause the Borrower under any Performing Serviced Mortgage Loan to maintain insurance shall be conducted in a manner that takes into account the insurance that would then be available to the applicable Master Servicer on a force-placed basis; and (F) to the extent the applicable Master Servicer itself is required to maintain insurance that the Borrower under any Performing Serviced Mortgage Loan does not maintain, the applicable Master Servicer shall not be required to maintain insurance other than what is available to such Master Servicer on a force-placed basis (and this will not be construed to modify the other limits set forth in clause (D) above). Notwithstanding the limitation set forth in clause (D) above, the applicable Master Servicer shall, prior to availing itself of any limitation described in that clause with respect to any Performing Serviced Mortgage Loan that has a Stated Principal Balance in excess of $2,500,000, obtain the approval or disapproval of the Special Servicer (and, in connection therewith, the Special Servicer shall be required to comply with any applicable provisions of Section 3.24). The applicable Master Servicer shall be entitled to rely on the determination of the Special Servicer made in connection with such approval or disapproval. The Special Servicer shall decide whether to withhold or grant such approval in accordance with the Servicing Standard. If any such approval has not been expressly denied within seven Business Days of the Special Servicer's receipt from the applicable Master Servicer of such Master Servicer's determination and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such approval shall be deemed to have been granted. The applicable Master Servicer shall notify the Special Servicer, the Trustee, the Controlling Class Representative and (if a Serviced Mortgage Loan Group is involved) the related Serviced Non-Pooled Mortgage Loan Noteholder, if the applicable Master Servicer determines that the Borrower under any Performing Serviced Mortgage Loan has failed to maintain insurance required under (or that such Master Servicer has required pursuant to a provision that entitles the lender to reasonably require insurance under) the related Mortgage Loan Documents and such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property or if the Borrower under any Performing Serviced Mortgage Loan has notified the applicable Master Servicer in writing that the Borrower does not intend to maintain such insurance and the applicable Master Servicer has determined that such failure materially and adversely affects such Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property. Subject to Section 3.17(b) and/or Section 3.24, as applicable, with respect to each Specially Serviced Mortgage Loan and Administered REO Property, the Special Servicer shall use reasonable efforts, consistent with the Servicing Standard, to maintain (and, in the case of Specially Serviced Mortgage Loans, the Special Servicer shall itself maintain, subject to the right of the Special Servicer to (x) direct the applicable Master Servicer to make a Servicing Advance for the costs associated with coverage that the Special Servicer determines to maintain, in which case the applicable Master Servicer shall make such Servicing Advance (subject to Section 3.19(b)), or (y) direct the applicable Master Servicer to cause such coverage to be maintained under the applicable Master Servicer's force-place insurance policy, in which case the applicable Master Servicer shall so cause such coverage to be maintained thereunder to the extent that the identified coverage is available under the applicable Master Servicer's existing force-place policy) with Qualified Insurers having the Required Claims-Paying Ratings (a) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Mortgage Loan or at such REO Property or (ii) the outstanding principal balance of such Mortgage Loan or the related REO Mortgage Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause, (b) a comprehensive general liability insurance policy with coverage comparable to that which would be required under prudent lending requirements and in an amount not less than $1 million per occurrence and (c) to the extent consistent with the Servicing Standard, a business interruption or rental loss insurance covering revenues or rents for a period of at least twelve (12) months or, with respect to Mortgage Loans with initial principal balances greater than $35 million, at least eighteen (18) months, in each case if so required pursuant to the related Mortgage Loan Documents; provided, however, that neither the applicable Master Servicer nor the Special Servicer shall be required in any event to maintain or obtain the insurance coverage otherwise described by this paragraph beyond what is available at commercially reasonable rates and consistent with the Servicing Standard or coverage with respect to which the Trustee does not have an insurable interest in the related Mortgaged Property or REO Property. All such insurance policies maintained as described above shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee, in the case of insurance maintained in respect of a Serviced Mortgage Loan, or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee, in the case of insurance maintained in respect of an Administered REO Property. Any amounts collected by a Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account of the applicable Master Servicer and/or a related Companion Note Custodial Account, as appropriate in accordance with Section 3.04, subject to withdrawal pursuant to Section 3.05, in the case of amounts received in respect of a Serviced Mortgage Loan, or in the REO Account of the Special Servicer, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an Administered REO Property. Any cost incurred by a Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of a Master Servicer or the Special Servicer on behalf of the Trust (and, if applicable, the Serviced Non-Pooled Mortgage Loan Noteholders) to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to a Master Servicer or the Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall (subject to Section 3.11(h) and Section 3.19(b)) be paid by, and reimbursable to, such Master Servicer or Special Servicer, as the case may be, as a Servicing Advance. (b) If (i) a Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force-placed policy insuring against hazard losses on all of the Serviced Mortgage Loans or Administered REO Properties, as applicable, as to which it is the applicable Master Servicer or the Special Servicer, as the case may be, then, to the extent such policy (A) is obtained from a Qualified Insurer having the Required Claims-Paying Ratings, and (B) provides protection equivalent to the individual policies otherwise required herein and in the Mortgage Loan Documents or (ii) a Master Servicer or the Special Servicer (or the corporate parent of the applicable Master Servicer or the Special Servicer, as the case may be) has long-term unsecured debt obligations that are rated not lower than "A2" by Xxxxx'x, "A" by Fitch and "A" by DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed above for Xxxxx'x and Fitch) by at least two nationally recognized statistical rating organizations) and such Master Servicer or the Special Servicer, as the case may be, self-insures for its obligation to maintain, and deposits into its Collection Account (any such deposit to be deemed to constitute "Insurance Proceeds") the amount of any loss to the Trust that would have been covered by, the individual policies otherwise required, such Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such a blanket or master force-placed policy may contain a deductible clause (not in excess of a customary amount), in which case the applicable Master Servicer or the Special Servicer, as the case may be, whichever maintains such policy, shall, if there shall not have been maintained on any Mortgaged Property securing a Serviced Mortgage Loan or any Administered REO Property thereunder a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the applicable Collection Account (or, to the extent the loss affects a related Serviced Non-Pooled Mortgage Loan Noteholder, in the related Companion Note Custodial Account) maintained by the applicable Master Servicer, from its own funds without any right of reimbursement from the Trust, the amount not otherwise payable under the blanket or master force-placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Serviced 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). The Master Servicers and the Special Servicer shall each prepare and present, on behalf of itself, the Trustee and Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan Noteholders, claims under any such blanket or master force-placed policy maintained by it in a timely fashion in accordance with the terms of such policy.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr5)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan CombinationLoan, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower each Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower the Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documentsdocuments; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage such Loan or Serviced Loan Combination grants documents permit the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (exercise such discretion in a manner consistent with the Servicing Standard and, prior to the date such existing insurance expires or is required to be renewed, the Master Servicer may, to the extent consistent with the Servicing Standard, take into account insurance in place at loan origination, with a view towards requiring insurance comparable to that required under other Loans with express provisions governing such matters and including business interruption or rental loss insurance for at least 12 months; and provided, further, that the Master Servicer shall be required to maintain such insurance coverage upon the related Mortgagor's failure to do so only to the extent that such insurance is available at commercially reasonable rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage (to the extent available at commercially reasonable rates) use efforts (A) than was previously required of the related Mortgagor under the related Loan documents and (B), at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance required to cause the related Borrower to obtain the requisite insurance coverage be maintained by Master Servicer or Special Servicer shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A" from S&P (or in such other form and amount or issued by an insurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event. All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans), or shall name the Trustee (and in the case of a Whole Loan the related Companion Loan Noteholder(s)) as the insured, with loss payable to the Special Servicer on behalf of the Trustee (and in the case of a Whole Loan the related Companion Loan Noteholder(s)) (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited into the Certificate Account or, if a Whole Loan is involved, the related Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable in the case of amounts received in respect of a Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Loan, notwithstanding that the terms of such Loan so permit; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust or, if a Whole Loan is involved, on behalf of the related Companion Loan Noteholders, to enforce any obligations of the related Mortgagor under such Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or the Special Servicer, as the case may be, as a Servicing Advance. Notwithstanding the foregoing, if as of the Closing Date the Loan documents specifically and expressly set forth terms requiring insurance coverage is obtained; against terrorist or similar acts for a Loan with a Stated Principal Balance greater than $20,000,000, then the Master Servicer and the Special Servicer shall enforce the terms of the related Loan documents in accordance with the Servicing Standard, and if the Mortgagor fails to maintain such insurance, such failure shall constitute a Servicing Transfer Event. To the extent the Loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Loan (Cx) requires a Mortgagor to maintain insurance policies covering some or all of the risks contained in the Additional Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer (in consultation with the Special Servicer (in consultation with the Directing Certificateholder)) has determined that the Loan documents permit the lender to require the Mortgagor to maintain insurance policies covering some or all the risks contained in the Additional Exclusions (the covered risks required to be covered or that the lender has the discretion to require to be covered being referred to as "Covered Risks"), the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent in accordance with the Servicing Standard to cause determine whether, upon renewal of the Borrower under Mortgagor's property or casualty insurance (including any Serviced Mortgage Loan to maintain all risk insurance policy), any of the insurance required to be maintained or that Covered Risks are excluded from coverage. If any of the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall Covered Risks are determined by the Master Servicer to be required to cause the Borrower under any Serviced Mortgage Loan to maintainexcluded from coverage, or itself obtain, insurance coverage that the Master Servicer has determined is shall request the Mortgagor to either (i) not available at any rate purchase insurance acceptable to the Master Servicer in accordance with the Servicing Standard and in accordance with the related Loan documents covering such Covered Risks or (ii) provide a written explanation as to its reasons for failing to purchase such insurance. Notwithstanding the foregoing, with the written consent of the Special Servicer in accordance with the Servicing Standard the Master Servicer may waive the requirement to procure insurance covering any of the Covered Risks if the Master Servicer determines in accordance with the Servicing Standard that (1) insurance covering any such Covered Risks is not available at a commercially reasonable rates and price, or (2) based on information reasonably available to the related hazards Master Servicer, after due inquiry, any such Covered Risks are at that time not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the Mortgaged Property is located unless the Stated Principal Balance of the Loan is greater than $20,000,000. If the Stated Principal Balance of the Loan is greater than $20,000,000, then the Master Servicer must determine that the circumstances in both clauses (1) and (2) of the immediately preceding sentence apply prior to waiving the Mortgagor's requirement to procure insurance with respect to any Covered Risks. If the Special Servicer fails to give a response to the Master Servicer as referenced in the second preceding sentence within ten Business Days of the Master Servicer initially notifying the Special Servicer in writing of such request, the Master Servicer shall promptly notify the Directing Certificateholder of such failure of the Special Servicer to respond to such request. If the Directing Certificateholder and/or the Special Servicer have not responded to the Master Servicer within ten Business Days of the notice referenced in the immediately preceding sentence, the Master Servicer shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain such insurance; provided, that during the period that the Special Servicer and/or the Directing Certificateholder are evaluating such insurance, none of the Master Servicer, the Special Servicer and/or the Directing Certificateholder shall be liable for any loss related to its failure to require a Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Master Servicer requires the Mortgagor to maintain such insurance and the Mortgagor fails to maintain such insurance, to the extent such insurance is then reasonably available, the Master Servicer shall then procure such insurance in accordance with the Servicing Standard and such failure by the Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing whether the $20,000,000 threshold described herein is met for a particular Loan, if a Loan is secured by multiple Mortgaged Properties, then the amount subject to the $20,000,000 threshold shall be the portion of the Stated Principal Balance of the related Loan pro rated based on an individual Mortgaged Property's appraised value as a percentage of the total appraised value of all of the related Mortgaged Properties. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Loans or REO Properties, as applicable, that it is required to service and administer hereunder, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than "A" from Fitch and "A" from S&P or having such other financial strength or claims-paying ability rating as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Loan (or, in the absence of any such deductible limitation, the deductible limitation for an individual policy that is located;consistent with the Servicing Standard). The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and the Certificateholders and, in the case of a Whole Loan, the related Companion Loan Noteholders, claims under any such blanket or master forced placed policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Loans or REO Properties for which it is responsible exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A" from S&P, a fidelity bond in such form and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in such otxxx xxrx xnd amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Loans and/or REO Properties for which it is responsible exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A" from S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in such otxxx xxrx xnd amount or issued by an insurer with such other financial strength or claims-paying rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee. So long as the long-term unsecured debt obligations of the Master Servicer or the Special Servicer (or its direct or indirect parent company), as applicable, are rated not lower than "A" from Fitch and "A" from S&P, the Master Servicer or Special Servicer, as applicable, may self-insure with respect to either or both of the fidelity bond coverage and the errors and omissions coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such the related Borrower does not so maintain, the Master Servicer will (even in the case of Specially Serviced Mortgage Loans) shall itself cause maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) hereof, and to the extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is required under the related Mortgage (subject to applicable law); (a) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be maintained applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, solely for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this provision is in no way intended to affect amounts due and owing from the related Borrower under such Mortgage Loan. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurers having Insurer that possesses (or whose obligations are guaranteed or backed, in writing, by an entity having) the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire , and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject provides protection equivalent to the Servicing Standard) individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the lender is entitled related Borrower has failed to reasonably require, subject to applicable law, maintain the hazard insurance required under the related Mortgage Loan Documentsin respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that all such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Collection Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the following conditions and/or limitations shall apply:deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (Aii) If the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on cause any Mortgaged Property securing or the Special Servicer shall cause any REO Property to be covered by a Serviced Mortgage Loan master single interest insurance policy naming the Master Servicer or Serviced Loan Combination unless the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses (or whose obligations are guaranteed or backed, in writing, by an entity having) the Required Claims-Paying Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have satisfied its obligation to cause such insurance policy was to be maintained on such Mortgaged Property (in effect at the time case of the origination Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Borrower has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then the incremental costs of such Serviced Mortgage Loan insurance applicable to such Mortgaged Property or Serviced Loan Combination pursuant to REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard and the terms of the related Mortgage Loan Documents documents, pursue the related Borrower for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and is available at commercially reasonable rates and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Trustee has an insurable interest; Collection Account from its own funds (Bwithout right of reimbursement) if and the amount not otherwise payable under the master single interest policy because of such deductible clause, to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. (c) use efforts consistent Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatrecognized insurers that possess (or whose obligations are guaranteed or backed, in each casewriting, have by entities having) the Required Claims-Paying Ratings at the time Ratings, a fidelity bond in such insurance coverage is obtained; (C) form and amount as would permit it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have no obligation beyond using its reasonable efforts consistent complied with the Servicing Standard foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to cause the Borrower under any Serviced Master Servicer or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess (or whose obligations are guaranteed or backed, in writing, by entities having) the Required Claims-Paying Ratings, a policy or policies of insurance covering loss occasioned by the errors and omissions of its (and, in the case of the initial Master Servicer, its general partner's) officers and employees in connection with its obligation to service the Mortgage Loan Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to maintain be a qualified Xxxxxx Mae or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Any such errors and omissions policy, if required, shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of Mortgage Loans and the Serviced Whole Loan (other than Specially Serviced Mortgage Loans and Non-Serviced Mortgage Loans)) and the Special Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Special Servicer, as applicable, provided that any such determination that such insurance is not available at commercially reasonable terms shall be consented to by the Majority Certificateholder of the Controlling Class); provided, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with the Servicing Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or Serviced Loan Combination, REO Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policyServicer, which does not provide for reduction due shall be entitled to depreciationrely on an opinion of counsel or insurance consultants in making such determination, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combinationprovided that, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that , such final determination shall be consented to by the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all Majority Certificateholder of the following conditions and/or limitations shall apply: Controlling Class) obtain such insurance (Awhich may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer shall not be required to maintain any earthquake in obtaining advice of counsel or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless consultants) of such insurance policy was (or in effect at the time case of a master or single interest policy, the origination incremental cost (including any deductible relating to such insurance) of such Serviced Mortgage Loan or Serviced Loan Combination insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05(e). If the terms Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the related Mortgage Loan Documents and applicable insurance is not available at commercially reasonable rates terms, the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Trustee Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan serviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has an insurable interest; been made available), the Master Servicer (Bor in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that any Serviced the Mortgage Loan or Serviced Whole Loan Combination grants requires the lender thereunder any discretion (by way of consentMortgagor or permits the mortgagee to require the Mortgagor to do so, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain a flood insurance policy meeting the requisite requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage from Qualified Insurers thatavailable under the National Flood Insurance Act of 1968, in each casethe Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably requireas amended, subject to applicable law, under unless otherwise specified by the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any or Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Whole 143

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor is required by the terms of the related Mortgage Loan and does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) that hereof), to the lender extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is entitled to reasonably require, required under the related Mortgage (subject to applicable law, under the related Mortgage Loan Documents); provided that all of if any Mortgage permits the following conditions and/or limitations shall apply: (A) holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall not be required impose such insurance requirements as are consistent with the Servicing Standard; provided further, that with respect to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced the Mortgage Loan or Serviced identified on the Mortgage Loan Combination unless such insurance policy was in effect Schedule as loan number 50072, (the "Broadway at the time of the origination of such Serviced Beach Mortgage Loan or Serviced Loan Combination Loan"), pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way Mortgage, each of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer and the Special Servicer shall (to the extent consistent with the Servicing Standard) use its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to obtain the requisite insurance coverage from Qualified Insurers thatmaintain 12-month business interruption income insurance. The Special Servicer shall cause to be maintained for each REO Property, in each case, have case with an insurer that possesses the Required Claims-Paying Ratings at the time such policy is purchased and to the extent available at commercially reasonable rates, no less insurance coverage is obtained;than was previously required of the related Mortgagor under the related Mortgage and, if the related Mortgage did not so require, hazard insurance, public liability insurance and business interruption or rent loss insurance in such amounts as are consistent with the Servicing Standard, and the Special Servicer shall be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05 (Ca) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Ratings, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Mortgagor has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have no satisfied its obligation beyond using its reasonable efforts to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the Borrower under any Serviced terms of the related Mortgage Loan documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount not otherwise payable under the master single interest policy because of such deductible clause, to maintain 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 at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Ratings a fidelity bond in such form and amount as would permit it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Ratings a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Mortgage Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Any such errors and omissions policy, shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp 1999-LTL-1 Commer Loan Pas THR Cer)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that have a general policy rating of at least A-X in A.M. Best's Key Rating Guide. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims paying ability rating of at least "X," "X0" and "A" from Standard & Poor's, Xxxxx'x (if then rated by Xxxxx'x) and Fitch (if then rated by Fitch), respectively (or solely Standard & Poor's, if such insurer is not rated by Xxxxx'x or Fitch) or such lower rating as will not result in each casequalification, have downgrading or withdrawal of the Required Claims-Paying Ratings at ratings then assigned to the time Certificates, as evidenced in writing by the Rating Agencies. All such insurance coverage is obtained; policies shall contain (Cif they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans), and shall have no obligation beyond using its reasonable efforts consistent with be in the Servicing Standard name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; in each case such insurance shall be issued by an insurer authorized under applicable law to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall issue such insurance. Any amounts collected by the Master Servicer be required to cause or the Borrower Special Servicer under any Serviced Mortgage Loan such policies (other than amounts to maintain, be applied to the restoration or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating of "X," "X0" and "A" or better from Standard & Poor's, Xxxxx'x and Fitch, respectively (or solely Standard & Poor's, if such insurer is not rated by Xxxxx'x and Fitch) or such lower rating of any Rating Agency or rating from any other nationally recognized statistical rating agency 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, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property is located;or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Serviced Assets) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Assets) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Obligor to maintain (including identifying the extent to which a Borrower is maintaining for each Mortgaged Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Lease or Mortgage Loan Documents and is available at commercially reasonable rates and Loan, as applicable (including for the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Obligor is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Borrower Obligor shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, which are licensed to do business in each casethe state wherein the related Obligor or the Mortgaged Property subject to the policy, have as applicable, is located. If such Obligor does not maintain the Required Claims-Paying Ratings at required insurance or, with respect to any Environmental Policy in place as of the time applicable First Collateral Date, the Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers meeting such criteria; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located or (ii) such insurance is not available at any rate. Subject to Section 3.17(b), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less insurance coverage than was previously required of the Obligor under the related Mortgage or Lease and at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and “A” by S&P. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.07(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Mortgaged Properties that it is located;required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.07(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Mortgaged Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Mortgaged Property or REO Property to be covered by such blanket policy in order to satisfy such obligations, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). If the Property Manager or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (which shall not include any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). Any such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such fidelity bond would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such insurance would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such insurance shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also, on behalf of the Issuers, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIIF” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such insurance would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such insurance shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. The insurance described in this clause (c) shall be required to include coverage in respect of losses that may be sustained as a result of an officer’s or employee’s of the Property Manager or the Special Servicer misappropriation of funds and errors and omissions. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch Ratings, Inc., the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that Spirit Realty may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 1 contract

Samples: Indenture Supplement (Spirit MTA REIT)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor is required by the terms of the related Mortgage Loan and does not so maintain, the Master Servicer will (even in the case of Specially Serviced Mortgage Loans) shall itself cause maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) hereof), to the extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is required under the related Mortgage (subject to applicable law); provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master (a) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurers having Insurer that possesses the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire , and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject provides protection equivalent to the Servicing Standard) individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the lender is entitled related Mortgagor has failed to reasonably require, subject to applicable law, maintain the hazard insurance required under the related Mortgage Loan Documents; provided that all in respect of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any such Mortgaged Property securing or to a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination specific REO Property, a Servicing Advance reimbursable pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consentpermitted under Section 3.05(a); provided that, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the hazard insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event is being maintained, they shall be borne by the Master Servicer be required to cause or Special Servicer, as the Borrower under any Serviced Mortgage Loan to maintaincase may be, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;without right of

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Serviced Assets) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Assets) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Obligor to maintain (including identifying the extent to which a Borrower is maintaining for each Mortgaged Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of such Lease or Mortgage Loan, as applicable (including for the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Obligor is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Borrower Obligor shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, which are licensed to do business in each casethe state wherein the related Obligor or the Mortgaged Property subject to the policy, have as applicable, is located. If such Obligor does not maintain the Required Claims-Paying Ratings at required insurance or, with respect to any Environmental Policy in place as of the time applicable First Collateral Date, the Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers meeting such criteria; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located or (ii) such insurance is not available at any rate. Subject to Section 3.17(b), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less insurance coverage than was previously required of the Obligor under the related Mortgage or Lease and at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and “A” by S&P. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.07(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Mortgaged Properties that it is located;required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.07(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Mortgaged Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Mortgaged Property or REO Property to be covered by such blanket policy in order to satisfy such obligations, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). If the Property Manager or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (which shall not include any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). Such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such fidelity bond would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such fidelity bond would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also, on behalf of the Issuers, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such fidelity bond would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. The insurance described in this clause (c) shall be required to include coverage in respect of losses that may be sustained as a result of an officer’s or employee’s of the Property Manager or the Special Servicer misappropriation of funds and errors and omissions. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch, the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that Spirit Realty may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 1 contract

Samples: Property Management and Servicing Agreement (Spirit Realty Capital, Inc.)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans to the case of each extent that the Trust Fund has an insurable interest, but other than with respect to the [__________] Serviced Mortgage Loan or Serviced Loan Combinationand its related Companion Loan) and the Special Servicer (with respect to REO Properties to the extent that the Trust Fund has an insurable interest) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent be from Qualified Insurers. REO Property with respect to the [__________] Loan is excluded for all purposes from this Section 3.07. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to cause be paid by the Borrower under any Serviced Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a), the insurance required Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without [__] days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if and only if the Master Servicer with respect to non-Specially Serviced Mortgage Loans or the Special Servicer with respect to Specially Serviced Mortgage Loans, in consultation with the Controlling Class Representative, and, with respect to each Co-Lender Loan, in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the borrower to maintain terrorism insurance (provided that the decision of the Controlling Class Representative to grant or withhold such consent shall be disregarded by the Special Servicer if such consent or lack of consent would cause the Master Servicer or the Special Servicer, as applicable, to violate the Servicing Standard); provided, however, the Controlling Class Representative's approval shall be deemed to have been given if it has not responded within [__] Business Days of receipt of the Master Servicer's or the Special Servicer's written recommendation and the information upon which such recommendation is based; provided, further, that upon the Master Servicer's or the Special Servicer's determination, as applicable, consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or the Special Servicer to consult with the Controlling Class Representative or Companion Holder, if applicable, the Master Servicer or the Special Servicer, as applicable, shall not be required to do so. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for [__] days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for [__] days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan CombinationLoan, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower each Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower the Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documentsloan documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such loan documents permit the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (exercise such discretion in a manner consistent with the Servicing Standard and, prior to the date such existing insurance expires or is required to be renewed, the Master Servicer may, to the extent consistent with the Servicing Standard, take into account insurance in place at loan origination, with a view towards requiring insurance comparable to that required under other Serviced Loans with express provisions governing such matters and including business interruption or rental loss insurance for at least 12 months; and provided, further, the Master Servicer shall be required to maintain such insurance coverage upon the related Mortgagor's failure to do so only to the extent that such insurance is available at commercially reasonable rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property (other than with respect to any REO Property related to a Non-Serviced Loan) use efforts no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related loan documents and (B), at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance required to cause the related Borrower to obtain the requisite insurance coverage be maintained by Master Servicer or Special Servicer shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from Fitch, "A2" from Moody's and "A" from S&P (or in such other form and amount or issued by xx xxxurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event. All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans), or shall name the Trustee (and in the case of a Whole Loan the related Companion Loan Holder) as the insured, with loss payable to the Special Servicer on behalf of the Trustee (and in the case of a Whole Loan the related Companion Loan Holder) (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited into the Certificate Account or, if a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable in the case of amounts received in respect of a Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of a REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Serviced Loan, notwithstanding that the terms of such Serviced Loan so permit; provided, however, this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust or, if a Whole Loan is involved, on behalf of the related Companion Loan Holder, to enforce any obligations of the related Mortgagor under such Serviced Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or the Special Servicer, as the case may be, as a Servicing Advance. If the related loan documents specifically and expressly set forth terms requiring insurance coverage is obtained; against terrorist or similar acts for a Serviced Loan, then the Master Servicer and the Special Servicer shall enforce the terms of the related loan documents in accordance with the Servicing Standard, and if the Mortgagor fails to maintain such insurance, such failure shall constitute a Servicing Transfer Event. To the extent the loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Serviced Loan (Cx) requires a Mortgagor to maintain insurance policies covering some or all of the risks contained in the Additional Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer has determined that the loan documents permit the lender to require the Mortgagor to maintain insurance policies covering some or all the risks contained in the Additional Exclusions (the covered risks required to be covered or that the lender has the discretion to require to be covered being referred to as "Covered Risks"), the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent in accordance with the Servicing Standard to cause determine whether, upon renewal of the Borrower under Mortgagor's property or casualty insurance (including any Serviced Mortgage Loan to maintain all risk insurance policy), any of the insurance required to be maintained or that Covered Risks are excluded from coverage. If any of the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall Covered Risks are determined by the Master Servicer to be required to cause the Borrower under any Serviced Mortgage Loan to maintainexcluded from coverage, or itself obtain, insurance coverage that the Master Servicer has determined is shall request the Mortgagor to either (i) not available at any rate purchase insurance acceptable to the Master Servicer in accordance with the Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide a written explanation as to its reasons for failing to purchase such insurance. Notwithstanding the foregoing, with the written consent of the Special Servicer in accordance with the Servicing Standard the Master Servicer may waive the requirement to procure insurance covering any of the Covered Risks if the Master Servicer determines in accordance with the Servicing Standard that (1) insurance covering any such Covered Risks is not available at a commercially reasonable rates and price, or (2) based on information reasonably available to the related hazards Master Servicer, after due inquiry, any such Covered Risks are at that time not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;located unless the Stated Principal Balance of the Serviced Loan is greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan is greater than $20,000,000, then the Master Servicer must determine that the circumstances in both clauses (1) and (2) of the immediately preceding sentence apply prior to waiving the Mortgagor's requirement to procure insurance with respect to any Covered Risks. If the Special Servicer fails to give a response to the Master Servicer as referenced in the second preceding sentence within ten Business Days of the Master Servicer initially notifying the Special Servicer in writing of such request, the Master Servicer shall promptly notify the Directing Certificateholder of such failure of the Special Servicer to respond to such request. If the Directing Certificateholder and/or the Special Servicer have not responded to the Master Servicer within ten Business Days of the notice referenced in the immediately preceding sentence, the Master Servicer shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain such insurance; provided, that during the period that the Special Servicer and/or the Directing Certificateholder are evaluating such insurance, none of the Master Servicer, the Special Servicer and/or the Directing Certificateholder shall be liable for any loss related to its failure to require a Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Master Servicer requires the Mortgagor to maintain such insurance and the Mortgagor fails to maintain such insurance, to the extent such insurance is then reasonably available, the Master Servicer shall then procure such insurance in accordance with the Servicing Standard and such failure by the Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing whether the $20,000,000 threshold described herein is met for a particular Serviced Loan, if a Serviced Loan is secured by multiple Mortgaged Properties, then the amount subject to the $20,000,000 threshold shall be the portion of the Stated Principal Balance of the related Serviced Loan pro rated based on an individual Mortgaged Property's appraised value as a percentage of the total appraised value of all of the related Mortgaged Properties.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans) or the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Loans and REO Properties) shall use reasonable its efforts consistent with the Servicing Standard Standards to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining required by the terms of the related Mortgage Note all insurance coverage as is required under the related Mortgage. If the Mortgagor does not so maintain such insurance coverage, the Master Servicer (with respect to Mortgage Loans and at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan) or the Special Servicer (with respect to REO Properties) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or the Special Servicer and, if available, can be obtained at commercially reasonable rates, except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Borrower does not so maintainMortgaged Property, the Master Servicer or the Special Servicer, as applicable, shall impose such insurance requirements as are consistent with the Servicing Standards, provided that, with respect to the immediately preceding proviso, the Master Servicer will itself cause be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer and, if available, can be maintained with Qualified Insurers having obtained at commercially reasonable rates. Subject to Section 3.17(a) and the Required Claims-Paying Ratings) costs of such insurance being reimbursed or paid to the Special Servicer as provided in the last sentence of this paragraph, the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgaged Property Mortgage Loan and Companion Loan unless the Special Servicer, with Directing Certificateholder consent, determines that such insurance is not available at commercially reasonable rates. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall (xi) contain a fire "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans and casualty extended Companion Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to not less than the lesser of (ix) the full replacement cost of the improvements securing such Serviced Mortgage Loan Mortgaged Property or Serviced Loan Combination the REO Property, as applicable, or (iiy) the outstanding principal balance of such Serviced owing on the related Mortgage Loan, Companion Loan or Serviced Loan CombinationREO Loan, butas applicable, and in any event, in an the amount sufficient necessary to avoid the application operation of any co-insurance clause and provisions, (yiv) all other insurance coverage include a replacement cost endorsement providing no deduction for depreciation (including but unless such endorsement is not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, permitted under the related Mortgage Loan Documents; provided that all documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of the following conditions and/or limitations nonpayment, in which case such policy shall apply: not be cancelled without 10 days prior notice) and (Avi) be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Master Servicer shall not or the Special Servicer under any such Insurance Policies (other than amounts to be required applied to maintain any earthquake the restoration or environmental insurance policy on any repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan REO Property or Serviced Loan Combination pursuant amounts to be released to the terms related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan Documents and Companion Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Master Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Companion Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is available at commercially reasonable rates insufficient therefor, advanced by the Master Servicer as a Servicing Advance. Notwithstanding the foregoing, with respect to the Mortgage Loans that either (x) require the Mortgagor to maintain "all risk" property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the Trustee has an insurable interest; applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan reasonably requires from time to time in order to protect its interests, the Master Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Special Servicer determines in accordance with the related Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Master Servicer and the Master Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Master Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any Serviced such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan or Serviced Loan Combination grants in the lender thereunder any discretion (by way absence of consentsuch deductible limitation, approval or otherwise) the deductible limitation which is consistent with the Servicing Standards. In connection with its activities as to administrator and Master Servicer of the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageMortgage Loans, the Master Servicer shall (agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing StandardStandards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) use efforts If the Master Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Master Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Properties and REO Properties. In the event the Master Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Master Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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 to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained;Standards. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Master Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Master Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Master Servicer or the Special Servicer, as applicable, is rated at least "A2" by Moody's and "A" by Fitch, the Master Servicer or the Specxxx Xxxxxcer, xx xxxxicable, shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. Such amount of coverage shall be, with respect to non-multifamily Mortgage Loans, in such form and amount as are consistent with the Servicing Standard Standards or, with respect to cause multifamily Mortgage Loans, at least equal to the Borrower under any Serviced Mortgage Loan coverage that would be required by Fannie Mae or Freddie Mac, whichever is greater, with respect 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; (D) in no event shall Maxxxx Xexxxcer xx xxx Special Servicer if the Master Servicer be required to cause or the Borrower under any Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loan to maintainLoans, as applicable, for Fannie Mae or itself obtain, insurance coverage that Freddie Mac. Coverage of the Master Servicer has determined is either (ior the Specixx Xxxvicer unxxx x xolicy or bond obtained by an Affiliate of the Master Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) not available at any rate or (ii) not available at commercially reasonable rates shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the related hazards are not at the time commonly insured against at the then-available rates for properties similar Master Servicer will promptly report in writing to the related Mortgaged Property Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and located omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or around procured pursuant to the region in which the related Mortgaged Property is located;requirements of this Section 3.07(c).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C3)

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Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent , with a view towards requiring insurance comparable to that required under other Mortgage Loans with express provisions governing such matters; and provided, further, that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have a claims-paying rating no lower than two rating categories below the Required Claims-Paying Ratings at highest rated Certificates outstanding, and in any event no lower than "BBB" from S&P and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" or better from A.M. Best). Subject to Section 3.17(b), the time such Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage is obtained; (Cto the extent available at commercially reasonable rates) than was previously required of the Master Servicer shall have no obligation beyond using its reasonable efforts Mortgagor under the related Mortgage and, at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance shall be obtained from Qualified Insurers that, in each case, shall have a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "BBB" from S&P and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M. Best) (or in such other form and amount or issued by an insurer with such other claims-paying ability as would not, as confirmed in writing by each Rating Agency, result in an Adverse Rating Event). All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans), or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided, however, that this sentence shall not limit the rights of the Servicer on behalf of the Trust to enforce any obligations of the related Mortgagor under such Mortgage Loan. (b) If the Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force place policy insuring against hazard losses on all of the Mortgage Loans or REO Properties, as applicable, that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating no lower than "A" from S&P and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M. Best) or is issued by an insurer with such other claims-paying ability as would not, as confirmed in writing by each Rating Agency, result in an Adverse Rating Event), and (ii) provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause the Borrower under any Serviced Mortgage Loan to maintain the hazard insurance required to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the lender is entitled Collection Account from its own funds the amount not otherwise payable under the blanket or master force place policy in connection with such loss or losses because of such deductible clause to reasonably require, subject the extent that any such deductible exceeds the deductible limitation that pertained to applicable law, under the related Mortgage Loan Documents;(or, in the absence of any such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard). The Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket or master force place policy in a timely fashion in accordance with the terms of such policy. (Dc) Each of the Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in no event shall the Master Servicer be required to cause case of the Borrower under any Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loan Loans or REO Properties exist as part of the Trust Fund) keep in force with a Qualified Insurer having a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "BBB" from S&P and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch,"A:IX" from A.M. Best), a fidelity bond in such form and amount or issued by an insurer with such other claims-paying ability rating as would permit it to maintain, be a qualified FNMA seller-servicer of multifamily mortgage loans (or itself obtain, insurance coverage that in such other form and amount as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Master Trustee by each Rating Agency)). Each of the Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at Special Servicer shall be deemed to have complied with the time commonly insured against at foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the then-available rates for properties similar terms of such fidelity bond, the coverage afforded thereunder extends to the related Mortgaged Property Servicer or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be cancelled without ten days' prior written notice to the Trustee. Each of the Servicer and located the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "BBB" from S&P and "A" from Fitch (if then rated by Fitch; and, if not then rated by Fitch, "A:IX" from A.M. Best), a policy or around policies of insurance covering loss occasioned by the region errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other claims paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the related Mortgaged Property is located;Trustee by each Rating Agency)). Each of the Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be cancelled without ten days' prior written notice to the Trustee. For so long as the long-term debt obligations of the Servicer or Special Servicer, as the case may be (or, in the case of the initial Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by each of the Rating Agencies (or, in the case of either Rating Agency, such lower rating as will not result in qualification, downgrade or withdrawal of any of the ratings then assigned to the Certificates by such Rating Agency, as evidenced in writing by such Rating Agency), such Person may self-insure with respect to the risks described in this Section 3.07(c).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, consistent with the Servicing Standard, use reasonable efforts to cause the related borrowers to maintain for each Mortgaged Property all insurance coverage as is required under the related Mortgage and if the related borrower fails to maintain such insurance, the Master Servicer or the Special Servicer, as applicable, shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining such insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documentsmaintained; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer or Special Servicer, as applicable, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with be from Qualified Insurers. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to cause be paid by the Borrower under any Serviced Master Servicer pursuant to Section 3.03. Even if the Mortgage Loan Documents do not require such coverage, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a) and the insurance required last paragraph of this Section 3.07(a), the Special Servicer shall also cause to be maintained, for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); and (Dvi) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any REO Loan and any Specially Serviced Mortgage Loan Loan), and shall not cause a borrower to maintain, or itself be in default with respect to the failure of the related borrower to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar act, if and only if the Master Servicer or Special Servicer, as applicable, has determined is determined, in consultation with the Controlling Class Representative, in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located; provided, however, the Controlling Class Representative shall not have more than three Business Days to respond to the Master Servicer's or Special Servicer's request for consultation; provided, further, that upon the Master Servicer's or Special Servicer's determination consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or Special Servicer, as the case may be, to consult with the Controlling Class Representative, the Master Servicer or Special Servicer shall not be required to do so. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA, or FHLMC, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a "claims paying ability" rating of at least "A" from Standard & Poor's and a financial strength rating of "A2" or better from Moody's (or Standard & Poor's and a comparable rating from at least one other nationally recognized statistical rating agency, in each caseif such insurer is not rated by Moody's). In connection with fourteen Mortgage Loans (control numbers XXXX-000, have XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000, XXXX-000 and MLMI-081), with respect to which Mortgage Loans the Required Claims-Paying Ratings at related Mortgage Loan documents require or permit the time such related mortgagee to require that earthquake insurance coverage is obtained; (C) be maintained, the Master Servicer or Special Servicer, as applicable, shall have no obligation beyond using its use reasonable efforts consistent with the Servicing Standard to cause require the Borrower under any Serviced related Mortgagor to maintain earthquake insurance as required or permitted by the Mortgage Loan documents. With respect to maintain any other Mortgage Loan that requires or permits the related lender to require that earthquake insurance required be maintained, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties and the Master Servicer or Special Servicer, as applicable, shall use reasonable efforts consistent with the Servicing Standard to enforce such obligation. With respect to any Mortgage Loan (i) that does not require or permit the related lender to require that earthquake insurance be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (Dii) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer or Special Servicer, as applicable, has determined is either (i) not available been unable to enforce the provisions of the preceding two sentences, the Majority Subordinate Certificateholder may request that earthquake insurance be secured by the Master Servicer or Special Servicer, as applicable, at any rate or (ii) not available at commercially reasonable rates and the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related hazards Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims paying ability rating of at least "A" from Standard & Poor's and a financial strength rating of "A2" or better from Moody's (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not at rated by Moody's) or such lower rating as will not result in qualification, downgrading or withdrawal of the time commonly insured ratings then assigned to the Certificates, as evidenced in writing by the Rating Agencies. All such insurance policies shall contain (if they insure against at loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the then-available rates for properties similar Master Servicer (in the case of insurance maintained in respect of Mortgage Loans), and shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trust Fund; in each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or a master forced place policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating of "A" or better from Standard & Poor's and a financial strength rating of "A2" or better from Moody's (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not rated by Moody's) or such lower rating of any Rating Agency or rating from any other nationally recognized statistical rating agency 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, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate 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 limitations that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation that pertained to the related Mortgage Loan, or, in the absence of such deductible limitation, the deductible limitation which is located;consistent with the Servicing Standard. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Costs to the Master Servicer of maintaining insurance policies pursuant to this Section 3.07 (including the incremental cost related to any Mortgaged Property with respect to any blanket policy or master forced place policy described in this Section 3.07(b) shall be paid by the Master Servicer as a Servicing Advance and shall be reimbursable to the Master Servicer with interest at the Reimbursement Rate, and costs to the Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid and reimbursed in accordance with Section 3.17(b). (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force with Qualified Insurers a fidelity bond issued by an insurer having a claims-paying rating of "A" or better from Standard & Poor's and a financial strength rating of "Aa2" or better from Moody's (if then rated by Moody's) respectively, or such lower rating of any Rating Agency or rating from any other nationally recognized statistical rating agency 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, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers having a claims-paying rating of "A" or better from Standard & Poor's and a financial strength rating of "Aa2" or better from Moody's 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, respectively, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional insured or loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be, are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Pass Through Cert Series 1998-C3)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of each Mortgage Loans other than Specially Serviced Mortgage Loan Loans) and the Special Servicer (in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or Serviced Loan Combinationthe Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with its normal servicing procedures. If a Mortgagor fails to maintain such insurance, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain obtain such insurance (which may be through a master or single interest policy) from insurers whose claims-paying ability is rated at least investment grade by each Rating Agency. The cost (including identifying any deductible relating to such insurance) of such insurance (or in the extent case of a master or single interest policy, the incremental cost (including any deductible relating to which such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Borrower Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is maintaining located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance coverage and, if such Borrower does not so maintainhas been made available), the Master Servicer will itself shall, if and to the extent that the Mortgage Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, cause the related Mortgagor to be maintained with Qualified Insurers having maintain a flood insurance policy meeting the Required Claims-Paying Ratingsrequirements of the current guidelines of the Federal Insurance Administration in the maximum amount of insurance coverage available under the National Flood Insurance Act or 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by the related Mortgage Loan. If (i) for the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master servicer shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such Serviced Mortgage Loan or Serviced Loan Combinationnotification, butthe Master Servicer shall obtain such insurance, in any event, in an amount sufficient the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsSection 3.05(a); provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain incur any earthquake such cost if such advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage. All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of Mortgaged Properties) or environmental insurance policy the Special Servicer (in the case of REO Properties) on behalf of the Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Master Servicer's or the Special Servicer's, as the case may be, normal servicing procedures) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the terms outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan Documents and is available at commercially reasonable rates and so permit, but shall be recoverable by the Trustee has an insurable interest;Master Servicer as a Servicing Advance pursuant to Section 3.05(a). (Bb) if If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as such policy provides protection equivalent to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageindividual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall (conclusively be deemed to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard have satisfied its obligation to cause the related Borrower hazard insurance to obtain the requisite insurance coverage from Qualified Insurers thatbe maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have no obligation beyond using been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account from its reasonable efforts consistent own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket policy because of such deductible clause. 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 maintained by it in a timely fashion in accordance with the Servicing Standard terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) obtained from Qualified Insurers having a claims-paying rating of not available at any rate or (ii) not available at commercially reasonable rates less than BBB by Standard & Poor's and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;its equivalent by Xxxxx'x.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan. All such Insurance Policies shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent; provided that the Servicer has received written confirmation from each Rating Agency that such self insurance by an immediate or remote parent will not cause the downgrade, qualification or withdrawal of the then current ratings of the Certificates) is rated at least "A" by S&P and Fitch, the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) During all such times as any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (ye) During all other insurance coverage (including but not limited such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to coverage for damage resulting from acts of terrorism) as is required or (subject be maintained, to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chase Manhattan Bk First Union Na Bk Com Mor Tr Ser 1999-1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Mortgage Loan (including each Specially Serviced Mortgage Loan or Serviced Loan CombinationLoan), the applicable Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the such Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratingsmaintained) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documents; provided Documents (except to the extent that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required failure to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and coverage is available at commercially reasonable rates and the Trustee has an insurable interest; (B) Acceptable Insurance Default); PROVIDED that, if and to the extent that any Serviced Mortgage Loan grants the lender thereunder any discretion (by way of consent, approval or Serviced otherwise) as to the insurance coverage that the related Borrower is required to maintain, the applicable Master Servicer shall exercise such discretion in a manner consistent with the Servicing Standard, with a view towards requiring insurance coverage with respect to the related Mortgaged Property no less favorable to that in place with respect to the related Mortgaged Property on the Closing Date and otherwise comparable to that required under other Mortgage Loans with express provisions governing such matters and, in any event, including insurance for property damage resulting from terrorist and similar acts (either by way of an all-risk casualty policy with no exclusion for such risks or a separate policy covering property damage from such risks), as well as business interruption or rental loss insurance for at least 12 months; and PROVIDED, FURTHER, that, if and to the extent that any Mortgage Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the applicable Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Xxxxx'x (or in such other form and amount or issued by an insurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event); and PROVIDED, FURTHER, that, in the case of any Mortgage Loan, the applicable Master Servicer shall be required to maintain such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under upon the related Mortgage Loan Documents; (D) in no event shall Borrower's failure to do so only to the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, extent that such insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the Trustee as mortgagee has an insurable interest (PROVIDED that, subject to the Trustee as mortgagee having an insurable interest, the applicable master servicer shall maintain insurance coverage for property damage resulting from terrorist or similar acts, unless the Borrower's failure to maintain such insurance constituted an Acceptable Insurance Default). Subject to SECTION 3.17(b), the applicable Special Servicer shall also -131- cause to be maintained for each REO Property no less insurance coverage (to the extent such insurance is available at commercially reasonable rates (except in the case of insurance coverage for property damage resulting from terrorist or similar acts, which coverage the applicable Special Servicer shall maintain unless the borrower's failure to maintain such insurance would have constituted an Acceptable Insurance Default)) than was previously required of the related hazards are not Borrower under the related Mortgage Loan Documents and, at a minimum, (i) hazard insurance with a replacement cost rider and, unless it would have constituted an Acceptable Insurance Default for the time commonly insured related Borrower, no exclusion for terrorist or similar acts, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; PROVIDED that all such insurance shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Xxxxx'x (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event). All such insurance policies shall contain (if they insure against at loss to property) a "standard" mortgagee clause, with loss payable to the then-available rates for properties similar applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of a Mortgage Loan), or shall name the Trustee as the insured, with loss payable to the applicable Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of an REO Property), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by a Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account of the applicable Master Servicer, subject to withdrawal pursuant to SECTION 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account of the applicable Special Servicer, subject to withdrawal pursuant to SECTION 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by a Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; PROVIDED, HOWEVER, that this sentence shall not limit the rights of a Master Servicer on behalf of the Trust to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to a Master Servicer or Special Servicer of maintaining insurance policies pursuant to this SECTION 3.07 shall be paid by and located reimbursable to such Master Servicer or Special Servicer, as the case may be, as a Servicing Advance. (b) If a Master Servicer or Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Mortgage Loans or REO Properties, as applicable, as to which it is the applicable Master Servicer or Special Servicer, as the case may be, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than "A" from S&P and "A2" from Xxxxx'x or having such other financial strength or claims-paying ability rating as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event, and (ii) provides protection equivalent to the individual policies otherwise required, such Master Servicer or around Special Servicer, as the region in which case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such a blanket or master force placed policy may contain a deductible clause (not in excess -132- of a customary amount), in which case the Master Servicer or Special Servicer, as the case may be, that maintains such policy shall, if there shall not have been maintained on any Mortgaged Property or REO Property thereunder a hazard insurance policy complying with the requirements of SECTION 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Collection Account maintained by the applicable Master Servicer, from its own funds, the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses 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 for an individual policy which is located;consistent with the Servicing Standard). Each Master Servicer and Special Servicer shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket or master force placed policy maintained by it in a timely fashion in accordance with the terms of such policy. (c) Within 45 days after the Closing Date, with respect to each of the Mortgage Loans covered by an Environmental Insurance Policy that are listed on EXHIBIT B-4 to this Agreement, the applicable Master Servicer shall notify the insurer under such Environmental Insurance Policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for such Master Servicer, on behalf of the Trust, to make claims) under such Environmental Insurance Policy. In the event that the applicable 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 covered thereby, the applicable 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. If any other party hereto has actual knowledge of an Insured Environmental Event with respect to any Mortgage Loan listed on EXHIBIT B-4 to this Agreement, such party shall promptly so notify the applicable Master Servicer. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim under an Environmental Insurance Policy shall be paid by the applicable Master Servicer and shall be reimbursable to it as a Servicing Advance. With respect to each Environmental Insurance Policy that relates to one or more Mortgage Loans, the applicable 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 in order to realize the full value thereof for the benefit of the Certificateholders in the event the applicable Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the applicable Master Servicer receives notice of any termination of any Environmental Insurance Policy that relates to one or more Mortgage Loans, such Master Servicer shall, within five Business Days after receipt of such notice, notify the applicable Special Servicer, the Controlling Class Representative, the Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the applicable Master Servicer shall address such termination in accordance with SECTION 3.07(a) in the same manner as it would the termination of any other Insurance Policy required under the related Mortgage Loan Documents. 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 applicable Master Servicer and shall be reimbursable to it as a Servicing Advance. -133- (d) Each of the Master Servicers and Special Servicers shall at all times during the term of this Agreement (or, in the case of a Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties as to which it is the applicable Special Servicer exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Xxxxx'x, a fidelity bond in such form and amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). A Master Servicer or Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to such Master Servicer or Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicers and Special Servicers shall at all times during the term of this Agreement (or, in the case of a Special Servicer, at all times during the term of this Agreement during which Specially Serviced Mortgage Loans and/or REO Properties as to which it is the applicable Special Servicer exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from S&P and "A2" from Xxxxx'x, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans (or in such other form and amount or issued by an insurer with such other financial strength or claims-paying rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). A Master Servicer or Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to such Master Servicer or Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with be from Qualified Insurers. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to be paid by the Master Servicer pursuant to Section 3.03. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that for each REO Property no less insurance coverage than was previously required of the lender is entitled to reasonably require, subject to applicable law, Mortgagor under the related Mortgage Loan Documents; Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies (Di) in no event shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be required in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to cause the Borrower insured party; and (iv) in each case such insurance shall be issued by an insurer authorized under any Serviced Mortgage Loan applicable law to maintain, or itself obtain, insurance coverage that issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use its reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor is required by the terms of the related Mortgage Loan and does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) hereof)) and except to the extent that the lender failure is entitled an Acceptable Insurance Default, to reasonably requirethe extent the Trustee, subject as mortgagee on behalf of the Certificateholders, has an insurable interest and to applicable law, the extent available at commercially reasonable rates) all insurance coverage as is required under the related Mortgage Loan Documents; (subject to applicable law), provided that all of if any Mortgage permits the following conditions and/or limitations holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall apply: (A) impose such insurance requirements as are consistent with the Servicing Standard. Notwithstanding the foregoing, the Master Servicer shall not be required require the related Mortgagor to maintain any earthquake or environmental upon such Mortgagor's failure, shall itself maintain insurance coverage for property damage resulting from "terrorism" or "terrorist acts" except to the extent such failure constitutes an Acceptable Insurance Default. As mutually agreed upon by the Master Servicer and the Trustee, the Master Servicer shall make available to the Trustee as of the Closing Date copies of each insurance policy and declaration of insurance for a Mortgaged Property covered by an insurance policy. Any amounts the Master Servicer pays to maintain insurance as set forth herein shall constitute Servicing Advances. The Special Servicer shall maintain for each REO Property with an insurer that possesses the Required Insurer Financial Strength Rating at the time such policy is purchased, no less insurance coverage than was previously required of the related Mortgagor under the related Mortgage (to the extent available at commercially reasonable rates) and, if the related Mortgage did not so require, hazard insurance, public liability insurance and business interruption or rent loss insurance in such amounts as are consistent with the Servicing Standard and to the extent such insurance is available at commercially reasonable rates the cost of which shall be paid as a Servicing Advance, or the Special Servicer may request the Master Servicer to make such Servicing Advance, and the Master Servicer or the Special Servicer, as applicable, shall be reimbursed for the premium costs thereof and any deductible relating to such insurance as a Servicing Advance with Advance Interest pursuant to Section 3.05 (a) All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (A) is obtained from a Qualified Insurer that possesses the Required Insurer Financial Strength Rating, and (B) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs and any deductible thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Mortgagor has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance by the Master Servicer at the direction of the Special Servicer (in the case of a Specially Serviced Mortgage Loan) under Section 3.07(a) which is reimbursable to the Master Servicer pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a reasonable deductible clause, in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property securing or the Special Servicer shall cause any REO Property to be covered by a Serviced Mortgage Loan forced placed insurance policy naming the Master Servicer or Serviced Loan Combination unless the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (A) is obtained from a Qualified Insurer that possesses the Required Insurer Financial Strength Rating and (B) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have satisfied its obligation to cause such insurance policy was to be maintained on such Mortgaged Property (in effect at the time case of the origination Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such forced placed insurance policy, then the incremental costs of such Serviced Mortgage Loan insurance applicable to such Mortgaged Property or Serviced Loan Combination REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer, or the Special Servicer, shall constitute a Servicing Advance which is reimbursable to the Master Servicer or the Special Servicer pursuant to and to the extent permitted under Section 3.05(a). The Master Servicer or the Special Servicer shall, consistent with the Servicing Standard and the terms of the related Mortgage Loan Documents documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such forced placed insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such forced placed insurance policy may contain a reasonable 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and is available at commercially reasonable rates and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Trustee has an insurable interest; Certificate Account from its own funds (Bwithout right of reimbursement) if and the amount not otherwise payable under the forced placed policy because of such deductible clause, to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. (c) use efforts Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with Qualified Insurers that possess the Required Insurer Financial Strength Rating a fidelity bond in such form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer of multifamily mortgage loans. Xxxx xx the Xxxxxx Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without thirty (30) days' prior written notice to the Trustee. In the event the Trustee becomes the successor Master Servicer or successor Special Servicer pursuant to Section 7.02, the Trustee shall be permitted to self-insure for purposes of meeting the requirements of this Section 3.07(c) for so long as the Trustee is rated no lower than "A" by S&P and "A2" by Moody's Investors Service, Inc. In addition, each of the Mxxxxx Xervicer and the Special Servicer shall at all times during the term of this Agreement keep in force with Qualified Insurers that possess the Required Insurer Financial Strength Rating a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Mortgage Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans. Any such erroxx xxx xxxssions policy, if required, shall provide that it may not be canceled without thirty (30) days' prior written notice to the Trustee. (d) It is understood and agreed for the avoidance of doubt that an amendment is pending concerning the Bank of America Plaza Loan to adjust the rating requirements for insurers with respect to such Mortgage Loan in a manner consistent with the Servicing Standard to cause description of such requirements in the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatProspectus Supplement, in each case, have the Required Claims-Paying Ratings at the time and that when such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan is so amended, such amended requirements shall apply hereunder with respect to maintain the insurance required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related such Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mort Pass Through Cert Ser 2002-2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan (to the extent obtainable). All such Insurance Policies shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of the full replacement cost of the REO Property or the outstanding principal balance owing on the related REO Loan, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents) and (v) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, at its own expense, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting under the control of the Servicer and the Special Servicer in connection with its activities under this Agreement with a deductible clause that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the fidelity bond or errors and omission policy as the case may be. The Servicer or the Special Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be named as a loss payee on each such fidelity bond and errors and omissions policy. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by S&P and "A" by DCR (if rated by DCR), the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. (d) During all such times as any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the Flood Disaster Protection Act of 1973, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and (y) all other insurance coverage (including but described above is not limited to coverage borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requiresuch costs, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply:Section 3.03(c). (Ae) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Master Special Servicer shall not will cause to be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant maintained, to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the Flood Disaster Protection Act of 1973, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chase Commercial Mortgage Securities Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of each Mortgage Loans other than Specially Serviced Mortgage Loan Loans) and the Special Servicer (in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Serviced Loan CombinationSpecial Servicer, as applicable, provided that any such determination that such insurance is not available at commercially reasonable terms shall be consented to by the Majority Certificateholder of the Controlling Class); provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall use reasonable efforts impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintaininsurance, the Master Servicer will itself cause (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer, which shall be maintained with Qualified Insurers having entitled to rely on an opinion of counsel or insurance consultants in making such determination, provided that, subject to the Required Claims-Paying RatingsServicing Standard, such final determination shall be consented to by the Majority Certificateholder of the Controlling Class) for obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer in obtaining advice of (i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (or in the case of a Specially Serviced Mortgage Loan or Serviced Loan CombinationLoan, butthe Special Servicer) shall obtain such insurance, in any event, in an amount sufficient the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsSection 3.05(a); provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided further, if the Master Servicer or environmental insurance policy on any Special Servicer, as applicable, shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property securing a Serviced and (ii) would be in the best interest of the Certificateholders, then the Master Servicer shall make such payment from amounts in the Certificate Account. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan or Serviced Loan Combination unless as is consistent with the Servicing Standard. All such insurance policy was policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in effect at the time case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the origination Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of such Serviced Mortgage Loan the related Mortgaged Property or Serviced Loan Combination pursuant REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a). (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the related Borrower to obtain Trustee and the requisite Certificateholders, claims under any such master force placed insurance coverage from Qualified Insurers that, policy maintained by it in each case, have a timely fashion in accordance with the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or the REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause obtained from Qualified Insurers having a claims paying ability rating (or the Borrower under any Serviced Mortgage Loan to maintainobligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, or itself obtainas applicable) of not less than (x) "A" by Standard & Poor's and (y) "A2" by Xxxxx'x; provided, insurance coverage however, that the Master Servicer has determined is either requirements of clauses (ix) and (y) shall not available at any rate be applicable with respect to Standard & Poor's or (ii) not available at commercially reasonable rates and Xxxxx'x, as applicable, if the related hazards are Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not at result, in and of itself, in a downgrade, qualification or withdrawal of the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;then current ratings by such Rating Agency of any Class of Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case With respect to those Mortgage Loans it is required to service hereunder, each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer and the Special Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the each related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer or Special Servicer, as applicable, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard; and provided further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to obtain the required insurance coverage from Qualified Insurers. If any Mortgagor fails to maintain such insurance, then the Master Servicer shall, to the extent that the Trustee as mortgagee has an insurable interest (and to the extent such insurance coverage is available at commercially reasonable rates), cause such insurance to be maintained (subject to the provisions of this Agreement regarding Nonrecoverable Advances). Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable rates); provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies shall contain (if they insure against loss to property) use efforts a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans), or shall name as the insured the Special Servicer (in the case of insurance maintained in respect of REO Properties), in either case on behalf of the Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer, the Special Servicer or any other party hereto in maintaining any such insurance shall be reimbursable as a Servicing Advance and shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring all of the Mortgage Loans (in the case of the Master Servicer) or all of the REO Properties (in the case of the Special Servicer), as the case may be, then, to the extent such policy (i) is obtained from a Qualified Insurer, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Properties or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property an insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate 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 to cause Standard. The Master Servicer or the related Borrower to obtain Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the requisite insurance coverage from Qualified Insurers thatTrustee and Certificateholders, claims under any such blanket policy in each case, have a timely fashion in accordance with the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cii) If the Master Servicer or the Special Servicer cause any Mortgaged Property or REO Property that it is required to service and administer to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. If the Master Servicer or the Special Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage or any REO Property to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. All other costs associated with any such master single interest insurance policy shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have no obligation beyond using been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its reasonable efforts own funds the amount not otherwise payable under the master single interest 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 to cause the Borrower under any Serviced Mortgage Loan 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;Standard. (Dc) in no event shall Each of the Master Servicer be required to cause and the Borrower under any Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loan Loans or REO Properties exist as part of the Trust Fund) keep in force with Qualified Insurers a fidelity bond in such form and amount as would permit it to maintain, or itself obtain, insurance coverage that be a qualified FNMA seller-servicer of multifamily mortgage loans. Each of the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at Special Servicer shall be deemed to have complied with the time commonly insured against at foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the then-available rates for properties similar terms of such fidelity bond, the coverage afforded thereunder extends to the related Mortgaged Property Master Servicer or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicer and located the Special Servicer shall at all times during the term of this Agreement (or, in or around the region case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the related Mortgaged Property is located;Trust Fund) also keep in force with Qualified Insurers a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mortgage Securities Vii Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage (other than earthquake insurance) as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintaininsurance, the Master Servicer will itself cause or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall (to the extent available at commercially reasonable rates) obtain such insurance (which may be maintained with Qualified Insurers having through a master or single interest policy), and the Required Claims-Paying Ratingscost (including any deductible relating to such insurance) for of such insurance (or in the related Mortgaged Property (x) case of a fire and casualty extended coverage insurance master or single interest policy, which does not provide for reduction due the incremental cost (including any deductible relating to depreciation, in an amount that is at least equal such insurance) of such insurance relating to the lesser of (ispecific Mortgaged Property) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall be a Servicing Advance (subject to the Servicing Standardlimitations set forth in Section 4.2(a)) that 104 recoverable by the lender Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, pursuant to Section 5.2. If at any time a Mortgaged Property is entitled to reasonably requirelocated in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) then upon the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a the Special Servicer becoming aware of such fact (using efforts consistent with the Servicing Standard), the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) Loans, shall, if and to the extent that any Serviced the Mortgage Loan requires the Mortgagor or Serviced Loan Combination grants permits the lender thereunder any discretion (by way of consentMortgagee to require the Mortgagor to do so, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage of not less than the least of (i) the unpaid principal balance of the related Mortgage Loan, (ii) the full insurable value of such Mortgaged Property, (iii) the maximum amount of insurance coverage available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, and (iv) 100% of the replacement cost of the improvements on such Mortgaged Property. If (i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property becoming located in such area by virtue of such remapping) or (ii) the terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain the requisite insurance coverage from Qualified Insurers thatsuch insurance, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, shall obtain such insurance (to the extent available at commercially reasonable rates), and the cost of such insurance shall be a Servicing Advance recoverable by the Master Servicer, or the Special Servicer in the case of Specially Serviced Mortgage Loans, pursuant to Section 5.2. The Special Servicer shall cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage. All such insurance policies shall contain a "standard" mortgagee clause or shall identify the Trustee as the named insured, as applicable, with any loss payable to the Master Servicer (in the case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the Trustee. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan documents and the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 5.2. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a blanket insurance policy, which provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer will conclusively be deemed to have no obligation beyond using satisfied its reasonable efforts respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, will 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 8.5(a), and (ii) a loss occurs that would have been covered by such a policy had it been maintained, immediately deposit into the Collection Account 105 (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. 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 insurance policy maintained by it in a timely fashion in accordance with the terms of such policy. The incremental cost of such insurance allocable to any Mortgaged Property or REO Property, if not borne by the Mortgagor, will be paid by the Master Servicer as a Servicing Advance. (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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Borrower Master Servicers 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 8.5(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 (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any Serviced such master force placed insurance policy maintained by it in a timely fashion in accordance with the terms of such policy. The incremental cost of such insurance allocable to any Mortgaged Property or REO Property, if not borne by the Mortgagor, will be paid by the Master Servicer as a Servicing Advance. (c) Each of the Master Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loan to maintain Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 8.5(c) shall satisfy the requirements of this Section 8.5(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or the Special Servicer under this Section 8.5 shall be required to cause obtained from Qualified Insurers (A) whose claims-paying ability is rated (or the Borrower under obligations of which are guaranteed or backed by a company having such claims paying ability or rating) at least "A" or its equivalent (or, in the case of a blanket hazard policy obtained in accordance with Section 8.5(b), rated in one of the two highest ratings categories) by any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate two 106 Rating Agencies or (iiB) not available at commercially reasonable rates and who are (as evidenced by the related hazards are not at the time commonly insured against at the then-available rates for properties similar receipt of Rating Agency Confirmation) otherwise acceptable to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;each Rating Agency.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Depositor for Series 1999-Fnv1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) that hereof), to the lender extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is entitled to reasonably require, required under the related Mortgage (subject to applicable law, under the related Mortgage Loan Documents); provided that all of if any Mortgage permits the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required holder thereof to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant dictate to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to Mortgagor the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) use efforts consistent with the Servicing Standard . The Special Servicer shall cause to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatbe maintained for each REO Property, in each case, have case with an insurer that possesses the Required Claims-Paying Ratings at the time such policy is purchased, no less insurance coverage is obtained;than was previously required of the related Mortgagor under the related Mortgage and, if the related Mortgage did not so require, hazard insurance, public liability insurance and business interruption or rent loss insurance in such amounts as are consistent with the Servicing Standard, and the Special Servicer shall be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05 (Ca) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be re leased to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Mortgagor has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have no satisfied its obligation beyond using its reasonable efforts to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the Borrower under any Serviced terms of the related Mortgage Loan documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount not otherwise payable under the master single interest policy because of such deductible clause, to maintain 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 at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a fidelity bond in such form and amount as would permit it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a policy or policies of insurance covering loss occasioned by the errors and omissions of its (or, in the case of each of the initial Master Servicer and the initial Special Servicer, its general partner's) officers and employees in connection with its obligation to service the Mortgage Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Any such errors and omissions policy, if required, shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. It is understood and agreed that the Rating Agencies have affirmed in writing that the use of certain specified insurance carriers by the Master Servicer, the Special Servicer and/or Sub-Servicers will not, in and of itself, cause a downgrade, qualification or change in the rating assigned to any Class of Certificates, notwithstanding that such insurance carriers do not possess the Required Claims-Paying Ratings as of the Closing Date. It is further understood and agreed that if the claims-paying ratings of any such insurance carrier are downgraded below the level assigned as of the Closing Date, such insurance carrier promptly shall be replaced by a Qualified Insurer that possesses the Required Claims-Paying Ratings. (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time Insurers. The cost of any such insurance coverage is obtained; (C) obtained by either the Master Servicer or the Special Servicer shall have no obligation beyond using its reasonable efforts consistent with be a Servicing Advance to be paid by the Servicing Standard Master Servicer pursuant to Section 3.03. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that for each REO Property no less insurance coverage than was previously required of the lender is entitled to reasonably require, subject to applicable law, Mortgagor under the related Mortgage Loan Documents; Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies (Di) in no event shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be required in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to cause the Borrower insured party; and (iv) in each case such insurance shall be issued by an insurer authorized under any Serviced Mortgage Loan applicable law to maintain, or itself obtain, insurance coverage that issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any 90 cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification (if applicable), downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of each Mortgage Loans other than Specially Serviced Mortgage Loan or Loans) and the Special Servicer (in the case of Specially Serviced Loan CombinationMortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall use reasonable efforts impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintaininsurance, the Master Servicer will itself cause (at the direction of the Special Servicer in the case of a Specially Serviced Loan) shall (to the extent available at commercially reasonable terms) obtain such insurance (which may be maintained with Qualified Insurers through a master or single interest policy) and the cost (including any deductible relating to such insurance) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located (i) the Required Claims-Paying Ratings) for Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (or in the case of a Specially Serviced Mortgage Loan Loan, the Special Servicer) shall obtain such insurance, the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer or Serviced Loan Combination, but, in any event, in an amount sufficient Special Servicer pursuant to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsSection 3.05(a); provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage or environmental as is consistent with the Servicing Standard. All such insurance policy policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was REO Property or amounts to be released to the related Mortgagor, in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a). (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. 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 maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the related Borrower to obtain Trustee and Certificateholders, claims under any such master force placed insurance policy maintained by it in a timely fashion in accordance with the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause obtained from Qualified Insurers having a claims paying ability rating (or the Borrower under any Serviced Mortgage Loan to maintainobligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, as applicable) of not less than (x) "A" by Standard & Poor's and (y) if rated by Fitch, "A" by Fitch (or, if not rated by Fitch, rated A-IX or itself obtainbetter by A.M. Best); provided, insurance coverage however, that the Master Servicer has determined is either requirements of clauses (ix) and (y) shall not available at any rate be applicable with respect to Standard & Poor's or (ii) not available at commercially reasonable rates and Fitch, as applicable, if the related hazards are Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not at result, in and of itself, in a downgrade, qualification or withdrawal of the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;then current ratings by such Rating Agency of any class of Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of Mortgage Loans and Serviced Whole Loans (other than Specially Serviced Mortgage Loans, the John Hancock Tower Mortgage Loan and the Boulevard Mall Mortgxxx Xxxx)) and the Special Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Special Servicer, as applicable, provided that any such determination that such insurance is not available at commercially reasonable terms shall be consented to by the Majority Certificateholder of the Controlling Class); provided, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with the Servicing Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or Serviced Loan CombinationREO Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer, which shall be entitled to rely on an opinion of counsel or insurance consultants in making such determination, provided that, subject to the Servicing Standard, such final determination shall be consented to by the Majority Certificateholder of the Controlling Class) obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer in obtaining advice of counsel or insurance consultants) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05 (e). If the Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the applicable insurance is not available at commercially reasonable terms, the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan serviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan or Serviced Whole Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying a flood insurance policy meeting the extent to which a Borrower is maintaining requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage andavailable under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by the related Mortgage Loan or Serviced Whole Loan. With respect to any Mortgage Loan (other than the John Hancock Tower Mortgage Loan and the Boulevard Mall Morxxxxe Xxxx) or any Serviced Whole Loan, if (i) the Mortgagor is required by the terms of the Mortgage Loan or Serviced Whole Loan to maintain such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of such Serviced the Mortgage Loan or Serviced Whole Loan Combinationpermit the mortgagee to require the Mortgagor to obtain such insurance, but, the Master Servicer (or in any event, in an amount sufficient to avoid the application case of any co-Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance clause within 120 days of such notification, the 123 Master Servicer (or in the case of any Specially Serviced Mortgage Loan, the Special Servicer) shall obtain such insurance, the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05 (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) e); provided, that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided, further, if the Master Servicer or environmental insurance policy on any Special Servicer, as applicable, shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property securing a and (ii) would be in the best interest of the Certificateholders (or with respect to any Serviced Whole Loan, the Certificateholders and the related Serviced Companion Loan Holders), then the Master Servicer shall make such payment from amounts in the Certificate Account or, with respect to any Serviced Whole Loan, from the related Serviced Whole Loan Custodial Account. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan or Serviced Loan Combination unless as is consistent with the Servicing Standard. All such insurance policy was policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in effect at the time case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the origination Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of such Serviced Mortgage Loan the related Mortgaged Property or Serviced Loan Combination pursuant REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates or Serviced Whole Loan documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account or, with respect to the any Serviced Whole Loan, deposited in the related Serviced Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a) and Section 3.05(e), respectively, in the case of amounts received in respect of a Mortgage Loan or Serviced Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a) or Section 3.05(e), as applicable. (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account or, with respect to any Serviced Whole Loan, deposited in the related Serviced Whole Loan Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect to the Serviced Whole Loans, the related Serviced Companion Loan Holders), claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account or, with respect to any Serviced Whole Loan, deposit into the related Serviced Whole Loan Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect any Serviced Whole Loan, the related Borrower to obtain Serviced Companion Loan Holders), claims under any such master force placed insurance policy maintained by it in a timely fashion in accordance with the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans, Serviced Companion Loans and/or the REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan CombinationLoan, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower each Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower the Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documentsloan documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such loan documents permit the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (exercise such discretion in a manner consistent with the Servicing Standard and, prior to the date such existing insurance expires or is required to be renewed, the Master Servicer may, to the extent consistent with the Servicing Standard, take into account insurance in place at loan origination, with a view towards requiring insurance comparable to that required under other Loans with express provisions governing such matters and including business interruption or rental loss insurance for at least 12 months; and provided, further, the Master Servicer shall be required to maintain such insurance coverage upon the related Mortgagor's failure to do so only to the extent that such insurance is available at commercially reasonable rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage (to the extent available at commercially reasonable rates) use efforts (A) than was previously required of the related Mortgagor under the related loan documents and (B), at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance required to cause the related Borrower to obtain the requisite insurance coverage be maintained by Master Servicer or Special Servicer shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A2" from Moody's (or in such other form and amount or issued by an insurer with xxxx xxher financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event. All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans), or shall name the Trustee (and in the case of a Whole Loan, the related Companion Loan Holder) as the insured, with loss payable to the Special Servicer on behalf of the Trustee (and in the case of a Whole Loan, the related Companion Loan Holder) (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited into the Certificate Account or, if a Whole Loan is involved, the related Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable in the case of amounts received in respect of a Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Loan, notwithstanding that the terms of such Loan so permit; provided, however, this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust or, if a Whole Loan is involved, on behalf of the related Companion Loan Holder, to enforce any obligations of the related Mortgagor under such Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or the Special Servicer, as the case may be, as a Servicing Advance. If the related loan documents specifically and expressly set forth terms requiring insurance coverage is obtained; against terrorist or similar acts for a Loan, then the Master Servicer and the Special Servicer shall enforce the terms of the related loan documents in accordance with the Servicing Standard, and if the Mortgagor fails to maintain such insurance, such failure shall constitute a Servicing Transfer Event. To the extent the loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Loan (Cx) requires a Mortgagor to maintain insurance policies covering some or all of the risks contained in the Additional Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer has determined (in consultation with the Special Servicer and the Directing Certificateholder) that the loan documents permit the lender to require the Mortgagor to maintain insurance policies covering some or all the risks contained in the Additional Exclusions (the covered risks required to be covered or that the lender has the discretion to require to be covered being referred to as "Covered Risks"), the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent in accordance with the Servicing Standard to cause determine whether, upon renewal of the Borrower under Mortgagor's property or casualty insurance (including any Serviced Mortgage Loan to maintain all risk insurance policy), any of the insurance required to be maintained or that Covered Risks are excluded from coverage. If any of the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall Covered Risks are determined by the Master Servicer to be required to cause the Borrower under any Serviced Mortgage Loan to maintainexcluded from coverage, or itself obtain, insurance coverage that the Master Servicer has determined is shall request the Mortgagor to either (i) not available at any rate purchase insurance acceptable to the Master Servicer in accordance with the Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide a written explanation as to its reasons for failing to purchase such insurance. Notwithstanding the foregoing, with the written consent of the Special Servicer in accordance with the Servicing Standard the Master Servicer may waive the requirement to procure insurance covering any of the Covered Risks if the Master Servicer determines in accordance with the Servicing Standard that (1) insurance covering any such Covered Risks is not available at a commercially reasonable rates and price, or (2) based on information reasonably available to the related hazards Master Servicer, after due inquiry, any such Covered Risks are at that time not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the Mortgaged Property is located unless the Stated Principal Balance of the Loan is greater than $20,000,000. If the Stated Principal Balance of the Loan is greater than $20,000,000, then the Master Servicer must determine that the circumstances in both clauses (1) and (2) of the immediately preceding sentence apply prior to waiving the Mortgagor's requirement to procure insurance with respect to any Covered Risks. If the Special Servicer fails to give a response to the Master Servicer as referenced in the second preceding sentence within ten Business Days of the Master Servicer initially notifying the Special Servicer in writing of such request, the Master Servicer shall promptly notify the Directing Certificateholder of such failure of the Special Servicer to respond to such request. If the Directing Certificateholder and/or the Special Servicer have not responded to the Master Servicer within ten Business Days of the notice referenced in the immediately preceding sentence, the Master Servicer shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain such insurance; provided that during the period that the Special Servicer and/or the Directing Certificateholder are evaluating such insurance, none of the Master Servicer, the Special Servicer and/or the Directing Certificateholder shall be liable for any loss related to its failure to require a Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Master Servicer requires the Mortgagor to maintain such insurance and the Mortgagor fails to maintain such insurance, to the extent such insurance is then reasonably available, the Master Servicer shall then procure such insurance in accordance with the Servicing Standard and such failure by the Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing whether the $20,000,000 threshold described herein is met for a particular Loan, if a Loan is secured by multiple Mortgaged Properties, then the amount subject to the $20,000,000 threshold shall be the portion of the Stated Principal Balance of the related Loan pro rated based on an individual Mortgaged Property's appraised value as a percentage of the total appraised value of all of the related Mortgaged Properties. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Loans or REO Properties, as applicable, that it is required to service and administer hereunder, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than "A" from Fitch and "A2" from Moody's or having such other financial strength or claims-paying abilitx xxxxxg as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Loan (or, in the absence of any such deductible limitation, the deductible limitation for an individual policy that is located;consistent with the Servicing Standard). The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and the Certificateholders and, in the case of a Whole Loan, the related Companion Loan Holder, claims under any such blanket or master forced placed policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Loans or REO Properties for which it is responsible exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A2" from Moody's, a fidelity bond in such form and amount as are consistent with xxx Xxrvicing Standard or would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in such otxxx xxrm and amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of each Mortgage Loans other than Specially Serviced Mortgage Loan or Loans) and the Special Servicer (in the case of Specially Serviced Loan CombinationMortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall use reasonable efforts impose such insurance requirements as are consistent with the Servicing Standard Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Loan) shall (to the extent available at commercially reasonable terms) obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts to cause the related Borrower Mortgagor to maintain a flood insurance policy meeting the requirements of the current guideline (including identifying i) the extent Mortgagor is required by the terms of the Mortgage Loan to which a Borrower is maintaining maintain such insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (or in the case of a Specially Serviced Mortgage Loan Loan, the Special Servicer) shall obtain such insurance, the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer or Serviced Loan Combination, but, in any event, in an amount sufficient Special Servicer pursuant to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsSection 3.05(a); provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage or environmental as is consistent with the Servicing Standard. All such insurance policy policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was REO Property or amounts to be released to the related Mortgagor, in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a). (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. 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 maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the related Borrower to obtain Trustee and Certificateholders, claims under any such master force placed insurance policy maintained by it in a timely fashion in accordance with the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the The Master Servicer shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage (other than earthquake insurance) as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer shall impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageinsurance, the Master Servicer shall (to the extent consistent with available at commercially reasonable rates and to the extent the Trustee, as Mortgagee, has an insurable interest) obtain such insurance (which may be through a master or single interest insurance policy), and the cost (including any deductible relating to such insurance) of such insurance (or in the case of a master or single interest insurance policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Standard) Advance recoverable by the Master Servicer pursuant to Section 5.2. If at any time a Mortgaged Property is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer shall, if and to the extent that the Mortgage Loan requires the Mortgagor or permits the Mortgagee to require the Mortgagor to do so, use efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to obtain maintain a flood insurance policy meeting the requisite requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage of not less than the least of (i) the unpaid principal balance of the related Mortgage Loan, (ii) the full insurable value of such Mortgaged Property, (iii) the maximum amount of insurance coverage from Qualified Insurers thatavailable under the National Flood Insurance Act or 1968, in each casethe Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, have as amended, and (iv) 100% of the Required Claims-Paying Ratings at replacement cost of the time improvements on such insurance coverage is obtained; Mortgaged Property. If (Ci) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with Mortgagor is required by the Servicing Standard to cause terms of the Borrower under any Serviced Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property becoming located in such area by virtue of such remapping) or (ii) the terms of the Mortgage Loan permit the Mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or, in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan) shall obtain such insurance (to the extent available at commercially reasonable rates), and the cost of such insurance shall be a Servicing Advance recoverable by the Master Servicer pursuant to Section 5.2. The Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage. All such insurance policies shall contain a "standard" mortgagee clause or shall identify the Trustee as the named insured, as applicable, with any loss payable to the Master Servicer (in the case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the Trustee. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan documents and the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 5.2. Any cost incurred by the Master Servicer in maintaining any such insurance shall not, for purposes hereof (but not, for purposes of determining the contractual balance due from a Mortgagor and secured by the related Mortgage), including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as applicable, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 8.5(a), and there shall have been one or more losses which would have been covered by such individual policy, promptly deposit into the Collection Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket policy because of such deductible clause to the extent such deductible exceeds the deductible limitation in respect of the related Mortgage Loan. The Master Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees acting on behalf of it in connection with its activities under this Agreement. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 8.5(c) shall satisfy the requirements of this Section 8.5(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or the Special Servicer under this Section 8.5 shall be required to cause obtained from Qualified Insurers (A) whose claims-paying ability is rated at least investment grade (or, in the Borrower under any Serviced Mortgage Loan to maintaincase of a blanket hazard policy obtained in accordance with Section 8.5(b), or itself obtainrated in one of the three highest ratings categories) by each Rating Agency or, insurance coverage that the Master Servicer has determined if such claims- paying ability is either (i) not available at any rate rated by Fitch, by each of Xxxxx'x and one other nationally recognized statistical rating organization or (iiB) not available who are (as evidenced by the receipt of Rating Agency Confirmation) otherwise acceptable to each Rating Agency or (C) whose claims paying ability is rated at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;least A:IX by A.M.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Loans) shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to obtain the requisite required insurance coverage from Qualified Insurers that have a general policy rating of at least A:X in A.M. Best's Key Rating Guide. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, in each caseif they are providing casualty insurance, shall have the Required Claims-Paying Ratings a general policy rating of at the time least "A" from both Rating Agencies (or solely Standard & Poor's, if such insurer is not rated by DCR). All such insurance coverage is obtained; policies shall contain (Cif they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans) or the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee, and shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard be issued by an insurer authorized under applicable law to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall issue such insurance. Any amounts collected by the Master Servicer be required to cause or the Borrower Special Servicer under any Serviced Mortgage Loan such policies (other than amounts to maintain, be applied to the restoration or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and the terms of the related Mortgage and in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating of "A" or better from both Rating Agencies (or solely Standard & Poor's, if such insurer is not rated by DCR), and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property is located;or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force with Qualified Insurers having a claims-paying rating of "A" or better from both Rating Agencies a fidelity bond in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by either Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers having a claims-paying rating of "A" or better from both Rating Agencies a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by either Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee. For so long as the long-term debt obligation of the Master Servicer or Special Servicer, as the case may be, are rated "A" or better by both Rating Agencies, such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans and to the case of each extent that the Trust Fund has an insurable interest, but other than the 2004-C10 Serviced Mortgage Loan or and its related Companion Loans and any Specially Serviced Loan CombinationMortgage Loan) and the Special Servicer (with respect to Specially Serviced Mortgage Loans and REO Properties) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided, further, that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent be from Qualified Insurers. REO Property with respect to the 00 Xxxxxxx Xxxxxx Loan is excluded for all purposes of this Section 3.07. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to cause be paid by the Borrower under any Serviced Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to maintain Section 3.17(a), the insurance required Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts, if, and only if the Master Special Servicer and, with respect to each Co-Lender Loan (other than the 00 Xxxxxxx Xxxxxx Loan) in consultation with the related AB Companion Holder if required under the applicable Intercreditor Agreement has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative (and with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative) has approved the decision not to require the borrower to maintain terrorism insurance (provided, that the decision of the Controlling Class Representative (and with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative) 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 (and with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative) approval shall be deemed to have been given if it has not responded within five Business Days 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 AB Companion Holder, if applicable (or, with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative), 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 that the Master Servicer has given prompt notice to the Special Servicer 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 shall promptly notify the Master Servicer of each determination under this paragraph. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and Companion Loans to the case of each extent that the Trust Fund has an insurable interest, but other than with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan, the 2006-C27 Serviced Mortgage Loan or Serviced Loan Combinationand their related Companion Loans) and the Special Servicer (with respect to REO Properties to the extent that the Trust Fund has an insurable interest) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; provided, further, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent be from Qualified Insurers. For the avoidance of doubt, REO Property with respect to the Servicing Standard to cause the Borrower under any Non-Serviced Mortgage Loans and the Four Seasons Resort and Club - Dallas, TX Loan is excluded for all purposes from this Section 3.07. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Advance to maintain be paid by the Master Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan documents require such insurance, the Majority Subordinate Certificateholder may request that earthquake insurance required be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies maintained by the Master Servicer or that the lender Special Servicer (i) shall contain (if they insure against loss to property and do not relate to an REO Property) a “standard” mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days’ prior written notice to the insured party; (iv) shall include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing a Mortgaged Property or REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions; (v) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; documents); (Dvi) shall include such other insurance, including, to the extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in no event each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so permit. Notwithstanding the foregoing, the Master Servicer or Special Servicer, as applicable, will not be required to cause maintain (and in the Borrower under case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan Loan), and shall not cause a Mortgagor to maintain, or itself be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance coverage that which does not contain any carve-out for terrorist or similar acts or windstorm coverage, if and only if the Master Servicer with respect to non-Specially Serviced Mortgage Loans or the Special Servicer with respect to Specially Serviced Mortgage Loans, in consultation with the Controlling Class Representative, and, with respect to each Co-Lender Loan (other than the Non-Serviced Mortgage Loans), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined is in accordance with the Servicing Standard that either (ia) such insurance is not available at any rate or (iib) such insurance is not available at commercially reasonably rates (which determination as to whether such insurance is available at commercially reasonable rates shall be made by the Special Servicer in consultation with and subject to the related approval of the Controlling Class Representative with respect to all Mortgage Loans) and that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the borrower to maintain terrorism insurance or windstorm coverage (provided that the decision of the Controlling Class Representative to grant or withhold such consent shall be disregarded by the Special Servicer if such consent or lack of consent would cause the Master Servicer or the Special Servicer, as applicable, to violate the Servicing Standard); provided, however, the Controlling Class Representative’s approval shall be deemed to have been given if it has not responded within five (5) Business Days of receipt of the Master Servicer’s or the Special Servicer’s written recommendation and the information upon which such recommendation is based; provided, further, that upon the Master Servicer’s or the Special Servicer’s determination, as applicable, consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or the Special Servicer to consult with the Controlling Class Representative or Companion Holder, if applicable, the Master Servicer or the Special Servicer, as applicable, shall not be required to do so; provided, further, during the period that the Special Servicer or Controlling Class Representative 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 or windstorm coverage 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. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days’ written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days’ written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least “A” or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C28)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan. All such Insurance Policies shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of the full replacement cost of the REO Property or the outstanding principal balance owing on the related REO Loan, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents) and (v) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement with a deductible clause that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the fidelity bond or errors and omission policy as the case may be. The Servicer or the Special Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be named as a loss payee on each such fidelity bond and errors and omissions policy. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by S&P and "A2" by Xxxxx'x, the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. (d) During all such times as any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and (y) all other insurance coverage (including but described above is not limited to coverage borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requiresuch costs, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply:Section 3.03(c). (Ae) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Master Special Servicer shall not will cause to be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant maintained, to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chase Commercial Mortgage Securities Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that have a "claims paying ability" rating of at least "A" from Standard & Poor's and a comparable rating from at least one other nationally recognized statistical rating agency. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims paying ability rating of at least "X," "X0" and "A" from Standard & Poor's, Moody's (if then rated by Moody's) and DCR (if then rated by DCR), respectively (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not rated by Moody's and DCR) or such lower rating as will not result in each casequalification, have downgrading or withdrawal of the Required Claims-Paying Ratings at ratings then assigned to the time Certificates, as evidenced in writing by the Rating Agencies. All such insurance coverage is obtained; policies shall contain (Cif they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans), and shall have no obligation beyond using its reasonable efforts consistent with be in the Servicing Standard name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; in each case such insurance shall be issued by an insurer authorized under applicable law to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall issue such insurance. Any amounts collected by the Master Servicer be required to cause or the Borrower Special Servicer under any Serviced Mortgage Loan such policies (other than amounts to maintain, be applied to the restoration or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating of "X," "X0" and "A" or better from Standard & Poor's, Moody's and DCR, respectively (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not rated by Moody's and DCR) or such lower rating of any Rating Agency or rating from any other nationally recognized statistical rating agency 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, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property is located;or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of Mortgage Loans and Serviced Whole Loans (other than Specially Serviced Mortgage Loans, the Mall at Millenia Mortgage Loan, the Xxxxx Fargo Tower Mortgage Loan and the Geneva Commons Mortgage Loan)) and the Special Servicer (solely in the case of Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage (to the extent such insurance coverage is available at commercially reasonable terms as determined by the Master Servicer or Special Servicer, as applicable,- provided that any such determination that such insurance is not available at commercially reasonable terms shall be consented to by the Majority Certificateholder of the Controlling Class); provided, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall impose such insurance requirements as are consistent with the Servicing Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or Serviced Loan CombinationREO Loan) shall (to the extent available at commercially reasonable terms as determined by the Master Servicer, which shall be entitled to rely on an opinion of counsel or insurance consultants in making such determination, provided that, subject to the Servicing Standard, such final determination shall be consented to by the Majority Certificateholder of the Controlling Class) obtain such insurance (which may be through a master or single interest policy) and the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Master Servicer in obtaining advice of counsel or insurance consultants) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a) or 3.05(e). If the Master Servicer or Special Servicer, as the case may be, determines in accordance with the preceding provisions of this paragraph that the applicable insurance is not available at commercially reasonable terms, the Master Servicer or the Special Servicer, as the case may be, shall notify the Majority Certificateholder of the Controlling Class and the Rating Agencies of such determination. If at any time a Mortgaged Property related to a Mortgage Loan serviced hereunder is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located in such area by virtue of remapping conducted by such agency (and flood insurance has been made available), the Master Servicer (or in the case of a Specially Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that the Mortgage Loan or Serviced Whole Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying a flood insurance policy meeting the extent to which a Borrower is maintaining requirements of the current guideline of the Federal Insurance Administration in the maximum amount of insurance coverage andavailable under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended, unless otherwise specified by the related Mortgage Loan or Serviced Whole Loan. With respect to any Mortgage Loan (other than the Mall at Millenia Mortgage Loan, the Xxxxx Fargo Tower Mortgage Loan and the Geneva Commons Mortgage Loan) or any Serviced Whole Loan, if (i) the Mortgagor is required by the terms of the Mortgage Loan or Serviced Whole Loan to maintain such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of such Serviced the Mortgage Loan or Serviced Whole Loan Combinationpermit the mortgagee to require the Mortgagor to obtain such insurance, but, the Master Servicer (or in any event, in an amount sufficient to avoid the application case of any co-Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance clause within 120 days of such notification, the Master Servicer (or in the case of any Specially Serviced Mortgage Loan, the Special Servicer) shall obtain such insurance, the cost of which shall be a Servicing Advance and (yshall be recoverable by the Master Servicer pursuant to Section 3.05(a) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) 3.05(e); provided, that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided, further, if the Master Servicer or environmental insurance policy on any Special Servicer, as applicable, shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property securing a and (ii) would be in the best interest of the Certificateholders (or with respect to any Serviced Whole Loan, the Certificateholders and the related Serviced Companion Loan Holders), then the Master Servicer shall make such payment from amounts in the Certificate Account or, with respect to any Serviced Whole Loan, from the related Serviced Whole Loan Custodial Account. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan or Serviced Loan Combination unless as is consistent with the Servicing Standard. All such insurance policy was policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in effect at the time case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the origination Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of such Serviced Mortgage Loan the related Mortgaged Property or Serviced Loan Combination pursuant REO Property or amounts to be released to the related Mortgagor, in each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates or Serviced Whole Loan documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account or, with respect to the any Serviced Whole Loan, deposited in the related Serviced Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a) and Section 3.05(e), respectively, in the case of amounts received in respect of a Mortgage Loan or Serviced Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance (including, subject to the Mortgage Loan documents, any other insurance maintained on the AFR/Bank of America Portfolio Whole Loan at the request of the Majority Certificateholder of the Controlling Class) shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a) or Section 3.05(e), as applicable. (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account or, with respect to any Serviced Whole Loan, deposited in the related Serviced Whole Loan Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. The Master Servicer and the Special Servicer each agrees to prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect to the Serviced Whole Loans, the related Serviced Companion Loan Holders), claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account or, with respect to any Serviced Whole Loan, deposit into the related Serviced Whole Loan Custodial Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the Trustee and the Certificateholders (and with respect any Serviced Whole Loan, the related Borrower to obtain Serviced Companion Loan Holders), claims under any such master force placed insurance policy maintained by it in a timely fashion in accordance with the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans, Serviced Companion Loans and/or the REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain the 153 (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required obtained from Qualified Insurers having a claims paying ability rating (or the obligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, as applicable) of not less than (x) "A" by Standard & Poor's and (y) "A" by Xxxxx'x; provided, however, that the requirements of clauses (x) or (y) shall not be applicable with respect to cause Standard & Poor's or Xxxxx'x, as applicable, if the Borrower under related Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not result, in and of itself, in a downgrade, qualification or withdrawal of the then current ratings by such Rating Agency of any Class of Certificates or any related Serviced Mortgage Companion Loan to maintainSecurities. Notwithstanding the foregoing, so long as the long-term debt or itself obtain, insurance coverage that the deposit obligations or claims-paying ability of the Master Servicer has determined or Special Servicer (or its immediate or remote parent) is either (irated at least "A" by S&P and "A1" by Xxxxx'x and, solely if Fitch is rating a subsequent securitization transaction under which any Serviced Companion Loan is securitized, "A" by Fitch, the Master Servicer or Special Servicer, respectively, shall be allowed to provide self-insurance with respect to a fidelity bond and such errors and omissions policy. Coverage of the Master Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Master Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) not available at any rate or (ii) not available at commercially reasonable rates and shall satisfy the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;requirements of this Section 3.07(c).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time Insurers. The cost of any such insurance coverage is obtained; (C) obtained by either the Master Servicer or the Special Servicer shall have no obligation beyond using its reasonable efforts consistent with be a Servicing Advance to be paid by the Servicing Standard Master Servicer pursuant to Section 3.03. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that for each REO Property no less insurance coverage than was previously required of the lender is entitled to reasonably require, subject to applicable law, Mortgagor under the related Mortgage Loan Documents; Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies (Di) in no event shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be required in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to cause the Borrower insured party; and (iv) in each case such insurance shall be issued by an insurer authorized under any Serviced Mortgage Loan applicable law to maintain, or itself obtain, insurance coverage that issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or around in the region REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, the Master Servicer will shall itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the related Mortgaged Property Mortgage (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) extent that the full Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if the Servicer obtains such insurance, the related Insurance Policy shall include a replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, endorsement providing for no deduction for depreciation but in any event, event in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited unless otherwise permitted in the related Mortgage Loan documents; provided further, that if any Mortgage permits the holder thereof to coverage for damage resulting from acts of terrorism) as is required or (subject dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing StandardStandards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan. All such Insurance Policies shall (i) that contain a "standard" mortgagee clause, with loss payable to the lender Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans other than REO Properties), (ii) be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, (iii) include coverage in an amount not less than the lesser of the full replacement cost of the REO Property without reduction for depreciation or the outstanding principal balance owing on the related REO Loan but in any event in an amount sufficient to avoid the application of any co-insurance clause unless otherwise permitted in the related Mortgage Loan documents, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is entitled to reasonably require, subject to applicable law, not permitted under the related Mortgage Loan Documents; provided that all documents) and (v) be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan REO Property or Serviced Loan Combination pursuant amounts to be released to the terms related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan Documents and is available at commercially reasonable rates and Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer (or, if required by Section 3.03(c) the Trustee has or the Fiscal Agent, as applicable) as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an insurable interest;expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer (or, if required by Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing Advance. (Bi) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or in the related Borrower is to obtain the requisite insurance coverageabsence of such deductible limitation, the Master deductible limitation which is consistent with the Servicing Standards. In connection with its activities as administrator and servicer of the Mortgage Loans, the Servicer shall (agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing StandardStandards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) use efforts If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer (or, if required by Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing Advance. Such master single interest policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single interest 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 Standards. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement with a deductible clause that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the fidelity bond or errors and omissions policy. The Servicer or the Special Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be named as a loss payee on each such fidelity bond and errors and omissions policy. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by Xxxxx'x and "A" by DCR (or, if not rated by DCR, similarly rated by one NRSRO in addition to Xxxxx'x), the Servicer (or the Servicer's immediate or remote parent) shall be allowed to provide self-insurance with respect to a fidelity bond; provided, however, that if such self-insurance is provided by the Servicer's immediate or remote parent, the Servicer shall deliver to each Rating Agency a copy of the agreement pursuant to which such parent is obligated to insure the Servicer with respect to a fidelity bond. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. (d) During all such times as any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Borrower to obtain Mortgagor (in accordance with applicable law and the requisite insurance coverage from Qualified Insurers that, in each case, have terms of the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (Ddocuments) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or and, if the related Mortgagor shall default in its obligation to so maintain, shall itself obtain, insurance coverage that maintain to the Master Servicer has determined is either (i) not available at any rate or (ii) not extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount not less than the lesser of (i) the unpaid principal balance of the related hazards are Mortgage Loan, and (ii) the maximum amount of insurance which is available under the Flood Disaster Protection Act of 1973, as amended. If the cost of any insurance described above is not at borne by the time commonly insured against at Mortgagor, the then-available rates Servicer shall promptly make a Servicing Advance for properties similar such costs, subject to Section 3.03(c). (e) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to be maintained, to the related Mortgaged extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the Flood Disaster Protection Act of 1973, as amended. The cost of any such flood insurance with respect to an REO Property and located in or around shall be an expense of the region in which Trust payable out of the related Mortgaged Property REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is located;insufficient therefor, paid by the Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing Advance.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgaged Loans) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Loans) shall use each exercise its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that have a general policy rating of at least A-X in A.M. Best's Key Rating Guide. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims paying ability rating of at least "A," "A" and "A" from Standard & Poor's, DCR (if then rated by DCR) and Fitch (if then rated by Fitch), respectively (or solely Standard & Poor's, if such insurer is not rated by DCR or Fitch) 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. All such insurance policies shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Mortgage Loans), and shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; in each case such insurance shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each casecase subject to the rights of any tenants and ground lessors, have as the Required Claims-Paying Ratings at case may be, and the time terms of the related Mortgage and in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance coverage is obtained;shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (Cb) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer having a claims-paying rating of "A," "A" and "A" or better from Standard & Poor's, DCR and Fitch, respectively (or solely Standard & Poor's, if such insurer is not rated by DCR and Fitch) or such lower rating of any Rating Agency or rating from any nationally recognized statistical rating agency 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, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force with Qualified Insurers a fidelity bond issued by an insurer having a claims-paying rating of "A," "A" and "A" or better from Standard & Poor's, DCR (if then rated by DCR) and Fitch (if then rated by Fitch), respectively or such lower rating of any Rating Agency or rating from a nationally recognized statistical rating agency 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, a fidelity bond in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by either Rating Agency to the Certificates (as evidenced in writing from each Rating Agency); and provided that the Master Servicer's current fidelity insurer, Aetna Casualty and Surety Company, shall be deemed to satisfy the requirements of this section so long as it has a claims-paying rating of "A" or better from Standard & Poor's. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers having a claims-paying rating of "A," "A" and "A" or better from Standard & Poor's, DCR (if then rated by DCR) and Fitch (if then rated by Fitch), 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, respectively, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, or which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not adversely affect any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. Notwithstanding the foregoing, the Master Servicer's current errors and omissions insurer, Lloyd's of London, shall be deemed (only with respect to the first 70 days following the Closing Date) to satisfy the requirements of this Section and, within 70 days following the Closing Date, the Master Servicer shall have no obligation beyond using its reasonable efforts consistent procure an errors and omission insurance policy with a Qualified Insurer satisfying the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that the lender is entitled to reasonably requireratings requirements of this Section 3.07(c); provided, subject to applicable lawhowever, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined shall not be required to procure an error and omissions policy with a Qualified Insurer satisfying the ratings requirements of this Section 3.07(c), if prior to the expiration of such 70 day period, Standard & Poor's confirms in writing to the Trustee that Lloyd's of London is either (i) not available at any rate or (ii) not available at commercially reasonable rates deemed to satisfy the requirements of this Section 3.07(c). The Master Servicer and the related hazards are not at Special Servicer shall each cause the time commonly insured against at the then-available rates for properties similar Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the related Mortgaged Property requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and located Special Servicer, their respective direct or indirect parent), are rated "A" or better by all of the Rating Agencies (or such lower rating as will not result in qualification, downgrading or around withdrawal of the region ratings then assigned to the Certificates, as evidenced in which writing by the related Mortgaged Property is located;Rating Agencies), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In Each of the Master Servicer (in the case of each Mortgage Loans other than Specially Serviced Mortgage Loan or Loans) and the Special Servicer (in the case of Specially Serviced Loan CombinationMortgage Loans) shall use reasonable efforts to cause each Mortgagor to maintain in respect of the related Mortgaged Property all insurance coverage as is required under the related Mortgage; provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall use reasonable efforts impose such insurance requirements as are consistent with the Servicing Standard to cause the related Borrower Standard. If a Mortgagor fails to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintaininsurance, the Master Servicer will itself cause (at the direction of the Special Servicer in the case of a Specially Serviced Loan) shall (to the extent available at commercially reasonable terms) obtain such insurance (which may be maintained with Qualified Insurers through a master or single interest policy) and the cost (including any deductible relating to such insurance) of such insurance (or in the case of a master or single interest policy, the incremental cost (including any deductible relating to such insurance) of such insurance relating to the specific Mortgaged Property), shall be a Servicing Advance and shall be recoverable by the Master Servicer pursuant to Section 3.05(a). If at any time a Mortgaged Property is located in an area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards or it becomes located (i) the Required Claims-Paying Ratings) for Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the related Mortgaged Property (xbecoming located in such area by virtue of such remapping) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance terms of the Mortgage Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of a Specially Serviced Loan, the Special Servicer), shall promptly notify the Mortgagor of its obligation to obtain such insurance. If the Mortgagor fails to obtain such flood insurance within 120 days of such notification, the Master Servicer (or in the case of a Specially Serviced Mortgage Loan Loan, the Special Servicer) shall obtain such insurance, the cost of which shall be a Servicing Advance and shall be recoverable by the Master Servicer or Serviced Loan Combination, but, in any event, in an amount sufficient Special Servicer pursuant to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsSection 3.05(a); provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer or Special Servicer shall not be required to maintain incur any earthquake such cost if such Advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.17(a), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property (to the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage or environmental as is consistent with the Servicing Standard. All such insurance policy policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of Mortgaged Properties) or the Special Servicer (in the case of REO Properties) on behalf of the Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was REO Property or amounts to be released to the related Mortgagor, in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to each case in accordance with applicable law, the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates documents and the Trustee has Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an insurable interest;REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the outstanding principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit, but shall be recoverable by the Master Servicer as a Servicing Advance pursuant to Section 3.05(a). (Bi) If the Master Servicer or the Special Servicer obtains and maintains a blanket policy insuring against hazard losses on all of the Mortgaged Properties and/or REO Properties for which it is responsible to cause the maintenance of insurance hereunder, then, to the extent such policy provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on a Mortgaged Property or an REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy, promptly deposit into the Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or, in the related Borrower is to obtain the requisite insurance coverageabsence of any such deductible limitation, the Master Servicer shall (to the extent deductible limitation which is consistent with the Servicing Standard. 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 maintained by it in a timely fashion in accordance with the terms of such policy. (ii) use efforts 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 provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer shall conclusively be deemed to have satisfied its respective obligations to cause hazard insurance to be maintained on such Mortgaged Properties and/or REO Properties. Such policy may contain a deductible clause, in which case the Master Servicer or the Special Servicer, as applicable, shall in the event that (x) there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and (y) 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 Certificate Account (or into the Servicing Account if insurance proceeds are to be applied to the repair or restoration of the applicable Mortgaged Property or disbursed to the related Mortgagor) 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 Standard. The Master Servicer and the Special Servicer each agrees to cause prepare and present, on behalf of itself, the related Borrower to obtain Trustee and Certificateholders, claims under any such master force placed insurance policy maintained by it in a timely fashion in accordance with the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time terms of such insurance coverage is obtained;policy. (Cc) Each of the Master Servicer and the Special Servicer shall have no obligation beyond using obtain and maintain at its reasonable efforts consistent own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy covering its officers and employees and other persons acting on behalf of it in connection with its activities under this Agreement and naming the Servicing Standard Trustee as an additional insured. The amount of coverage shall be at least equal to cause the Borrower coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or Special Servicer, as the case may be, if the Master Servicer or Special Servicer, as the case may be, were servicing and administering the Mortgage Loans and/or REO Properties for which it is responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or the Special Servicer under any Serviced Mortgage Loan to maintain a policy or bond obtained by an Affiliate of such Person and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall by the Master Servicer or Special Servicer, as applicable, under this Section 3.07 shall be required to cause obtained from Qualified Insurers having a claims paying ability rating (or the Borrower under any Serviced Mortgage Loan to maintainobligations of which are guaranteed or backed by a company having such claims paying ability rating or insurance financial strength rating, as applicable) of not less than (x) "A" by Standard & Poor's and (y) "A" by Fitch (or, if not rated by Fitch, rated A-IX or itself obtainbetter by A.M. Best); provided, insurance coverage however, that the Master Servicer has determined is either requirements of clauses (ix) and (y) shall not available at any rate be applicable with respect to Standard & Poor's or (ii) not available at commercially reasonable rates and Fitch, as applicable, if the related hazards are Rating Agency shall have confirmed in writing that an insurance company with a lower claims paying ability rating shall not at result, in and of itself, in a downgrade, qualification or withdrawal of the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;then current ratings by such Rating Agency of any class of Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such insurance coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, or (y) the outstanding principal balance owing on the related Mortgage Loan or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurers having Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Required Claims-Paying Ratings) for Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (xother than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer on behalf of the Trustee (or the Trustee in the case of the Special Servicer) as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest policy because of such deductible clause, to the extent that any such deductible exceeds the deductible limitation set forth in the related Mortgage Loan documents for the original policy 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 obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "A" by Fitch and "A2" by Moody's, the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by Xxxxxx Mae or Xxxxxxx Mac, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due Xxxxxx Mae or Xxxxxxx Mac. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standard that any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use reasonable efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (ye) During all other insurance coverage (including but not limited such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to coverage for damage resulting from acts of terrorism) as is required or (subject be maintained, to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Chase Commercial Mort Sec Corp Com Mor Pa Th Ce Ser 2000-2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage, except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with Qualified Insurers having the Required Claims-Paying Ratings) Servicing Standards, provided that the Servicer will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is an Acceptable Insurance Default. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgaged Property Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (xi) contain a fire and casualty extended "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to not less than the lesser of (ix) the full replacement cost of the improvements securing such Serviced Mortgage Loan Mortgaged Property or Serviced Loan Combination the REO Property, as applicable, or (iiy) the outstanding principal balance of such Serviced owing on the related Mortgage Loan or Serviced Loan CombinationREO Loan, butas applicable, and in any event, in an the amount sufficient necessary to avoid the application operation of any co-insurance clause and provisions, (yiv) all other insurance coverage include a replacement cost endorsement providing no deduction for depreciation (including but unless such endorsement is not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, permitted under the related Mortgage Loan Documents; provided that all documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of the following conditions and/or limitations shall apply: (A) the Master Servicer nonpayment, in which case such policy shall not be required cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurer authorized under applicable law to maintain issue such Insurance Policies. Any amounts collected by the Servicer or the Special Servicer under any earthquake such Insurance Policies (other than amounts to be applied to the restoration or environmental insurance policy on any repair of the related Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan REO Property or Serviced Loan Combination pursuant amounts to be released to the terms related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan Documents or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. Notwithstanding the foregoing, with respect to the Mortgage Loans which either (x) require the Mortgagor to maintain "all risk" property insurance (and is available at commercially reasonable rates do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the Trustee has an insurable interest; holder of such Mortgage Loan reasonably requires from time to time in order to protect its interests, the Servicer will be required to (A) actively monitor whether the insurance policies for the related Mortgaged Property contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) notify the Special Servicer if any insurance policy contains Additional Exclusions or if any borrower fails to purchase the insurance requested to be purchased by the Servicer pursuant to clause (B) above. If the Special Servicer determines that such failure is not an Acceptable Insurance Default, the Special Servicer shall notify the Servicer and the Servicer shall cause such insurance to be maintained. Furthermore, the Special Servicer shall inform the Rating Agencies as to such conclusions for those Mortgage Loans that have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust. During the period that the Special Servicer is evaluating the availability of such insurance, the Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and will not be in default of its obligations as a result of such failure. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such deductible exceeds the lender thereunder any discretion (by way of consent, approval or otherwise) as deductible limitation that pertained to the insurance provider from whom related Mortgage Loan, or in the related Borrower is to obtain the requisite insurance coverageabsence of such deductible limitation, the Master deductible limitation which is consistent with the Servicing Standards. In connection with its activities as administrator and Servicer shall (of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing StandardStandards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) use efforts If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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 Standards. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer or the Special Servicer, as applicable, is rated at least "A2" by Moody's and "A" by Fitch, the Servicer or the Special Serxxxxx, xx applicable, shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by Fannie Mae or Freddie Mac, whichever is greater, with respect to the Sexxxxxx xx the Xxxxxxx Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for Fannie Mae or Freddie Mac. Coverage of the Servicer or the Special Servxxxx xnder a pxxxxx xr bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required Trustee to be maintained an additional loss payee on any policy currently in place or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar procured pursuant to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;requirements of this Section 3.07(c).

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Sec Corp Pass Thru Cert Ser 2003-Cibc6)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all insurance coverage as is required under the Master Servicer will itself cause related Mortgage, unless otherwise provided in this Section 3.07; provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with Qualified Insurers having the Required Claims-Paying Ratings) Servicing Standards, provided that the Servicer will be obligated to maintain insurance against property damage resulting from terrorist or similar acts unless otherwise provided in this Section 3.07. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgaged Property Mortgage Loan. All Insurance Policies maintained by the Servicer or the Special Servicer shall (xi) contain a fire and casualty extended "standard" mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans other than REO Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to not less than the lesser of (ix) the full replacement cost of the improvements securing such Serviced Mortgage Loan Mortgaged Property or Serviced Loan Combination the REO Property, as applicable, or (iiy) the outstanding principal balance of such Serviced owing on the related Mortgage Loan or Serviced Loan CombinationREO Loan, butas applicable, and in any event, in an the amount sufficient necessary to avoid the application operation of any co-insurance clause and provisions, (yiv) all other insurance coverage include a replacement cost endorsement providing no deduction for depreciation (including but unless such endorsement is not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, permitted under the related Mortgage Loan Documents; provided that all documents), (v) be noncancellable without 30 days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by the Servicer or the Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the following conditions and/or limitations related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standards and the provisions of the related Mortgage Loan) shall apply:be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (other than REO Properties) (Ai) if the Master Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. Notwithstanding the foregoing, the Servicer or Special Servicer (with respect to REO Properties), as applicable, will not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing and shall not cause a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was Mortgagor to be in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant default with respect to the terms failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if, after the Servicer provides the Special Servicer the information described in the immediately succeeding sentence for Mortgage Loan Documents and is available at commercially reasonable rates and Loans but not REO Properties, the Trustee has an insurable interest; (B) if and Special Servicer, with the consent of the Directing Certificateholder, and, with respect to the extent that any Serviced Bishops Gate AB Mortgage Loan or Serviced Loan Combination grants Loan, the lender thereunder any discretion (by way of consentBishops Gate Companion Holder, approval or otherwise) as and, with respect to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverageConcord Mills Mortgage Loan, the Master Servicer shall (to the extent consistent Directing Certificateholder, has determined in xxxxrdance with the Servicing StandardStandards that either (a) use efforts consistent with the Servicing Standard to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (iib) such insurance is not available at commercially reasonable reasonably rates and the related that such hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located; provided, however, that upon the Special Servicer's determination consistent with the Servicing Standards, that exigent circumstances do not allow the Special Servicer to obtain the consent of the Directing Certificateholder or Bishops Gate Companion Holder, if 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, neither the Servicer nor the Special Servicer shall be liable for any loss related to its failure to require the Mortgagor to maintain such insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Servicer becomes aware that a Mortgagor is not maintaining insurance against terrorist or similar acts as required under the related Mortgage Loan, the Servicer shall deliver the following to the Special Servicer: (i) an outline of the coverage(s) required under the Mortgage, (ii) an outline of the coverage(s) carried by the Mortgagor and how it fails to comply with the required coverage(s), (iii) a statement as to why the Servicer believes the Special Servicer should review the matter, (iv) copies of all relevant documentation in the possession of the Servicer to the extent not already provided to the Special Servicer, and (v) such other information (other than quotes for insurance) as shall reasonably be requested by the Special Servicer and in the possession of the Servicer, including, without limitation, all documentation regarding the Mortgagor's efforts to obtain such insurance. The Special Servicer shall promptly notify the Servicer of each determination under this paragraph. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 located;consistent with the Servicing Standard. In connection with its activities as administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single or force-placed interest 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer or the Special Servicer, as applicable, is rated at least "A2" by Moody's and "A" by S&P, the Servicer or the Special Servixxx, xx xpplicxxxx, xhall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by Fannie Mae or Freddie Mac, whichever is greater, with respect to the Sexxxxxx xx the Xxxxxxx Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for Fannie Mae or Freddie Mac. Coverage of the Servicer or the Special Servxxxx xnder a pxxxxx xr bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standard that any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use reasonable efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan, and (ii) the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. If the cost of any insurance described above is not borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs. (e) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Special Servicer will cause to be maintained, to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standards and with the concurrence of the Directing Certificateholder), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, paid by the Servicer as a Servicing Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Pass THR Cert Se 2003 C1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or (including each Specially Serviced Loan CombinationMortgage Loan), the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratingsmaintained) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documents; provided Documents (except to the extent that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required failure to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and coverage is available at commercially reasonable rates and the Trustee has an insurable interest; (B) Acceptable Insurance Default); PROVIDED that, if and to the extent that any Serviced Mortgage Loan grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Borrower is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the Servicing Standard, with a view towards requiring insurance coverage with respect to the related Mortgaged Property no less favorable to that in place with respect to the related Mortgaged Property on the Closing Date and otherwise comparable to that required under other Serviced Mortgage Loans with express provisions governing such matters and, in any event, including insurance for property damage resulting from terrorist and similar acts (either by way of an all-risk casualty policy with no exclusion for such risks or a separate policy covering property damage from such risks), as well as business interruption or rental loss insurance for at least 12 months; and PROVIDED, FURTHER, that, if and to the extent that any Serviced Mortgage Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) use efforts consistent with the Servicing Standard to cause require the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatthat possess (or whose obligations are, in each any such case, have guaranteed or backed in writing by an entity that possesses) the Required Claims-Paying Ratings at Ratings; and PROVIDED, FURTHER, that, in the time such insurance coverage is obtained; (C) case of any Serviced Mortgage Loan, the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, maintain such insurance coverage upon the related Borrower's failure to do so only to the extent that the Master Servicer has determined (I) such insurance is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the Trustee as mortgagee has an insurable interest (PROVIDED that, subject to the Trustee as mortgagee having an insurable interest, the Master Servicer shall maintain insurance coverage for property damage resulting from terrorist or similar acts, unless the Borrower's failure to maintain such insurance constituted an Acceptable Insurance Default), and (II) the payment of premiums for such insurance either would not constitute a Nonrecoverable Advance or may be made directly from the Collection Account in accordance with SECTION 3.11(I). Subject to SECTION 3.17(B), the Special Servicer shall also cause to be maintained for each Administered REO Property no less insurance coverage (to the extent (I) such insurance is available at commercially reasonable rates (except in the case of insurance coverage for property damage resulting from terrorist or similar acts, which coverage the Special Servicer shall maintain unless the Borrower's failure to maintain such insurance would have constituted an Acceptable Insurance Default), and (II) the payment of premiums for such insurance either would not constitute a Nonrecoverable Advance or may be made directly from the Collection Account in accordance with SECTION 3.11(I)) than was previously required of the related hazards are not Borrower under the related Mortgage Loan Documents and, at a minimum, (i) hazard insurance with a replacement cost rider and, unless it would have constituted an Acceptable Insurance Default for the time commonly insured related Borrower, no exclusion for terrorist or similar acts, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; PROVIDED that all such insurance shall be obtained from Qualified Insurers that possess (or whose obligations are, in any such case, guaranteed or backed in writing by an entity that possesses) the Required Claims-Paying Ratings. All such insurance policies shall contain (if they insure against at loss to property) a "standard" mortgagee clause, with loss payable to the then-available rates for properties similar Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of a Serviced Mortgage Loan), or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of an Administered REO Property), and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to SECTION 3.05(A), in the case of amounts received in respect of a Serviced Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to SECTION 3.16(C), in the case of amounts received in respect of an Administered REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit; PROVIDED, HOWEVER, that this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust to enforce any obligations of the related Borrower under such Mortgage Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this SECTION 3.07 shall be paid by and located reimbursable to the Master Servicer or Special Servicer, as the case may be, as a Servicing Advance. (b) If the Master Servicer or Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on some or all of the Serviced Mortgage Loans and/or Administered REO Properties, as applicable, for which it is responsible, then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses (or whose obligations are guaranteed or backed in writing by an entity that possesses) the Required Claims-Paying Ratings, and (ii) provides protection equivalent to the individual policies otherwise required under SECTION 3.07(A), the Master Servicer or around Special Servicer, as the region in which case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such a blanket or master force placed policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or Special Servicer, as the case may be, that maintains such policy shall, if there shall not have been maintained on any Mortgaged Property (other than the [Separately Serviced Mortgage Loan] Mortgaged Property) or Administered REO Property thereunder a hazard insurance policy complying with the requirements of SECTION 3.07(A), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Collection Account, from its own funds (without right of reimbursement), the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan Documents (or, in the absence of any such deductible limitation, the deductible limitation for an individual policy which is located;consistent with the Servicing Standard). Each of the Master Servicer and the Special Servicer shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket or master force placed policy maintained by it in a timely fashion in accordance with the terms of such policy. (c) Within 45 days after the Closing Date, with respect to each of the Environmentally Insured Mortgage Loans, the Master Servicer shall notify the insurer under the related Environmental Insurance Policy and take all other action necessary for the Trustee, on behalf 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 Environmentally Insured Mortgage Loan for which the Borrower has not filed a claim, 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. If any other party hereto has actual knowledge of an Insured Environmental Event with respect to any Environmentally Insured Mortgage Loan, such party shall promptly so notify the Master Servicer. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim under an Environmental Insurance Policy shall be paid by the Master Servicer and shall be reimbursable to it as a Servicing Advance. With respect to each Environmental Insurance Policy in respect of an Environmentally Insured 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 in order 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. The Master Servicer shall abide by the terms and conditions precedent to payment of claims under the Environmental Insurance Policies with respect to the Environmentally Insured Mortgage Loans and take all such action as may be required to comply with the terms and provisions of such policies in order to maintain such policies in full force and effect and to make claims thereunder. In the event that the Master Servicer receives notice of any termination of any Environmental Insurance Policy with respect to Environmentally Insured 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 SECTION 3.07(A) in the same manner as it would the termination of any other Insurance Policy required under the related Mortgage Loan Documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with enforcing the obligations of the Borrower under any Environmental Insurance Policy or 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. (d) The Master Servicer and the Special Servicer each shall at all times during the term of this Agreement keep in force with Qualified Insurers that possess (or whose obligations are, in any such case, guaranteed or backed in writing by an entity that possesses) the Required Claims-Paying Ratings, a fidelity bond in such form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer of multifamily mortgage loaxx (xx xx such xxxxx form and amount as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). The Master Servicer and the Special Servicer each shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, the Master Servicer and the Special Servicer each shall at all times during the term of this Agreement keep in force with Qualified Insurers that possess (or whose obligations are, in any such case, guaranteed or backed in writing by an entity that possesses) the Required Claims-Paying Ratings, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Serviced Mortgage Loans for which it is responsible hereunder and, to the limited extent contemplated by ARTICLES I through XI, to administer the [Separately Serviced Mortgage Loan], which policy or policies shall be in such form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer of multifamily mortgage loaxx (xx in such xxxxx form and amount as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Master Servicer (with respect to Mortgage Loans and the case of each Crowne Plaza Companion Loan other than Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan CombinationLoans) shall, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage andStandard, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan DocumentsMortgage; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided further that, if and to the Servicing Standard to cause extent that a Mortgage so permits, the related Borrower Mortgagor shall be required to exercise its reasonable best efforts to obtain the requisite required insurance coverage from Qualified Insurers that, in each case, have the Required Claims-Paying Ratings at the time such and required insurance coverage is obtained; (C) obtained by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with be from Qualified Insurers. The cost of any such insurance coverage obtained by either the Master Servicer or the Special Servicer shall be a Servicing Standard Advance to be paid by the Master Servicer pursuant to Section 3.03. The Majority Subordinate Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the expense of the Majority Subordinate Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or that for each REO Property no less insurance coverage than was previously required of the lender is entitled to reasonably require, subject to applicable law, Mortgagor under the related Mortgage Loan Documents; Mortgage; provided that all such insurance shall be obtained from Qualified Insurers. All such insurance policies (Di) in no event shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Trustee or the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans); (ii) shall be required in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice to cause the Borrower insured party; and (iv) in each case such insurance shall be issued by an insurer authorized under any Serviced Mortgage Loan applicable law to maintain, or itself obtain, insurance coverage that issue such insurance. Any amounts collected by the Master Servicer has determined is either or the Special Servicer under any such policies (i) not available at any rate other than amounts to be applied to the restoration or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and located ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or around the region Crowne Plaza Companion Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or the Crowne Plaza Companion Loan so permit. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy insuring against hazard losses on all of the Mortgage Loans, the Crowne Plaza Companion Loan and/or REO Properties that it is required to service and administer, then, to the extent such policy (i) is obtained from a Qualified Insurer and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties and/or REO Properties. Such blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket policy because of such deductible clause. The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in force a fidelity bond with Qualified Insurers, such fidelity bond to be in such form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is located;greater, seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrading or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide for ten days' written notice to the Trustee prior to any cancellation. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep in force with Qualified Insurers, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such other form and amount as would not cause the qualification, downgrade or withdrawal of any rating assigned by any Rating Agency to the Certificates (as evidenced in writing from each Rating Agency). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide for ten days' written notice to the Trustee prior to cancellation. The Master Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). For so long as the long-term debt obligations of the Master Servicer or Special Servicer, as the case may be (or in the case of the initial Master Servicer and Special Servicer, their respective direct or indirect parent), are rated at least "A" or the equivalent by all of the Rating Agencies (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), such Person may self-insure with respect to the risks described in this subsection.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan CombinationLoan, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Borrower each Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage maintain, and, if such Borrower the Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) maintained, for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due including each Mortgaged Property relating to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such any Specially Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (yLoan) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requirerequired, subject to applicable law, under the related Mortgage Loan Documentsloan documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) that, if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants such loan documents permit the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to obtain the requisite insurance coveragemaintain, the Master Servicer shall (exercise such discretion in a manner consistent with the Servicing Standard and, prior to the date such existing insurance expires or is required to be renewed, the Master Servicer may, to the extent consistent with the Servicing Standard, take into account insurance in place at loan origination, with a view towards requiring insurance comparable to that required under other Serviced Loans with express provisions governing such matters and including business interruption or rental loss insurance for at least 12 months; and provided, further, the Master Servicer shall be required to maintain such insurance coverage upon the related Mortgagor's failure to do so only to the extent that such insurance is available at commercially reasonable rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.17(b), the Special Servicer shall also cause to be maintained for each REO Property (other than with respect to any REO Property related to a Non-Serviced Loan) use efforts no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related loan documents and (B), at a minimum, (i) hazard insurance with a replacement cost rider, (ii) business interruption or rental loss insurance for at least 12 months, and (iii) commercial general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard Standard; provided that all such insurance required to cause the related Borrower to obtain the requisite insurance coverage be maintained by Master Servicer or Special Servicer shall be obtained from Qualified Insurers that, in each case, shall have a financial strength or claims-paying rating no lower than two rating categories below the Required Claimshighest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A" from S&P (or in such other form and amount or issued by an insurer with such other financial strength or claims-Paying Ratings at paying ability as would not, as confirmed in writing by the time relevant Rating Agency, result in an Adverse Rating Event. All such insurance policies shall contain (if they insure against loss to property) a "standard" mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of the Mortgage Loans), or shall name the Trustee (and in the case of a Whole Loan the related Companion Loan Holder) as the insured, with loss payable to the Special Servicer on behalf of the Trustee (and in the case of a Whole Loan the related Companion Loan Holder) (in the case of insurance maintained in respect of REO Properties), and shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited into the Certificate Account or, if a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as applicable in the case of amounts received in respect of a Loan, or in the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of a REO Property. Any cost incurred by the Master Servicer or Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders, be added to unpaid principal balance or Stated Principal Balance of the related Serviced Loan, notwithstanding that the terms of such Serviced Loan so permit; provided, however, this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust or, if a Whole Loan is involved, on behalf of the related Companion Loan Holder, to enforce any obligations of the related Mortgagor under such Serviced Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance policies pursuant to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or the Special Servicer, as the case may be, as a Servicing Advance. If the related loan documents specifically and expressly set forth terms requiring insurance coverage is obtained; against terrorist or similar acts for a Serviced Loan, then the Master Servicer and the Special Servicer shall enforce the terms of the related loan documents in accordance with the Servicing Standard, and if the Mortgagor fails to maintain such insurance, such failure shall constitute a Servicing Transfer Event. To the extent the loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Serviced Loan (Cx) requires a Mortgagor to maintain insurance policies covering some or all of the risks contained in the Additional Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer has determined that the loan documents permit the lender to require the Mortgagor to maintain insurance policies covering some or all the risks contained in the Additional Exclusions (the covered risks required to be covered or that the lender has the discretion to require to be covered being referred to as "Covered Risks"), the Master Servicer shall have no obligation beyond using its use reasonable efforts consistent in accordance with the Servicing Standard to cause determine whether, upon renewal of the Borrower under Mortgagor's property or casualty insurance (including any Serviced Mortgage Loan to maintain all risk insurance policy), any of the insurance required to be maintained or that Covered Risks are excluded from coverage. If any of the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall Covered Risks are determined by the Master Servicer to be required to cause the Borrower under any Serviced Mortgage Loan to maintainexcluded from coverage, or itself obtain, insurance coverage that the Master Servicer has determined is shall request the Mortgagor to either (i) not available at any rate purchase insurance acceptable to the Master Servicer in accordance with the Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide a written explanation as to its reasons for failing to purchase such insurance. Notwithstanding the foregoing, with the written consent of the Special Servicer in accordance with the Servicing Standard the Master Servicer may waive the requirement to procure insurance covering any of the Covered Risks if the Master Servicer determines in accordance with the Servicing Standard that (1) insurance covering any such Covered Risks is not available at a commercially reasonable rates and price, or (2) based on information reasonably available to the related hazards Master Servicer, after due inquiry, any such Covered Risks are at that time not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the Mortgaged Property is located unless the Stated Principal Balance of the Serviced Loan is greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan is greater than $20,000,000, then the Master Servicer must determine that the circumstances in both clauses (1) and (2) of the immediately preceding sentence apply prior to waiving the Mortgagor's requirement to procure insurance with respect to any Covered Risks. If the Special Servicer fails to give a response to the Master Servicer as referenced in the second preceding sentence within ten Business Days of the Master Servicer initially notifying the Special Servicer in writing of such request, the Master Servicer shall promptly notify the Directing Certificateholder of such failure of the Special Servicer to respond to such request. If the Directing Certificateholder and/or the Special Servicer have not responded to the Master Servicer within ten Business Days of the notice referenced in the immediately preceding sentence, the Master Servicer shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain such insurance; provided, that during the period that the Special Servicer and/or the Directing Certificateholder are evaluating such insurance, none of the Master Servicer, the Special Servicer and/or the Directing Certificateholder shall be liable for any loss related to its failure to require a Mortgagor to maintain terrorism insurance and shall not be in default of its obligations hereunder as a result of such failure. If the Master Servicer requires the Mortgagor to maintain such insurance and the Mortgagor fails to maintain such insurance, to the extent such insurance is then reasonably available, the Master Servicer shall then procure such insurance in accordance with the Servicing Standard and such failure by the Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing whether the $20,000,000 threshold described herein is met for a particular Serviced Loan, if a Serviced Loan is secured by multiple Mortgaged Properties, then the amount subject to the $20,000,000 threshold shall be the portion of the Stated Principal Balance of the related Serviced Loan pro rated based on an individual Mortgaged Property's appraised value as a percentage of the total appraised value of all of the related Mortgaged Properties. (b) If the Master Servicer or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained, a blanket policy or master force placed policy insuring against hazard losses on all of the Serviced Loans or REO Properties (other than with respect to any REO Property related to a Non-Serviced Loan), as applicable, that it is required to service and administer hereunder, then, to the extent such policy (i) is obtained from a Qualified Insurer having a financial strength or claims-paying rating no lower than "A" from Fitch and "A" from S&P or having such other financial strength or claims-paying ability rating as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the related Mortgaged Properties or REO Properties, as applicable. Such policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Certificate Account from its own funds the amount not otherwise payable under the blanket or master force placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Serviced Loan (or, in the absence of any such deductible limitation, the deductible limitation for an individual policy that is located;consistent with the Servicing Standard). The Master Servicer or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Trustee and the Certificateholders and, in the case of a Serviced Whole Loan, the related Companion Loan Holder, claims under any such blanket or master forced placed policy in a timely fashion in accordance with the terms of such policy. (c) Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Loans or REO Properties for which it is responsible exist as part of the Trust Fund) keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A" from S&P, a fidelity bond in such form and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in such otxxx xxrx xnd amount or issued by an insurer with such other financial strength or claims-paying ability rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without ten days' prior written notice to the Trustee. Each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which Specially Serviced Loans and/or REO Properties for which it is responsible exist as part of the Trust Fund) also keep in force with a Qualified Insurer having a financial strength or claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "A" from Fitch and "A" from S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage loans (or in such otxxx xxrx xnd amount or issued by an insurer with such other financial strength or claims-paying rating as would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days' prior written notice to the Trustee. So long as the long-term unsecured debt obligations of the Master Servicer or the Special Servicer (or its direct or indirect parent company), as applicable, are rated not lower than "A" from Fitch and "A" from S&P, the Master Servicer or Special Servicer, as applicable, may self-insure with respect to either or both of the fidelity bond coverage and the errors and omissions coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-5)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each Serviced Mortgage Loan or Serviced Loan Combination, the Master The Servicer shall use its reasonable best efforts consistent with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying maintain, to the extent to which a Borrower is maintaining insurance coverage andrequired by the terms of the related Mortgage Note, or if such Borrower the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan all Insurance Policy coverage as is required under the Master Servicer will itself cause related Mortgage (to the extent that the Trustee has an insurable interest and such Insurance Policy coverage is available at commercially reasonable rates, consistent with the Servicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged Property, the Servicer shall impose such insurance requirements as are consistent with the Servicing Standards. Subject to Section 3.17(a), the Special Servicer shall maintain for each REO Property no less Insurance Policy coverage than was previously required of the (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the Servicer as a Servicing Advance and will be charged to the related Mortgagor and (ii) shall not, for purposes thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Servicer as a Servicing Advance. (i) If the Servicer or the Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurers having Insurer insuring against fire and hazard losses on all of the Required Claims-Paying Ratings) for Mortgage Loans or REO Properties, as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the Servicer or the Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property (x) or REO Property a fire and casualty extended hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into the Certificate Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance 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 administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. The Special Servicer, to the extent consistent with the Servicing Standards, may maintain, at its own expense, earthquake insurance on REO Properties, provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance. (ii) If the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force placed insurance policy with a Qualified Insurer naming the Servicer or the Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, the Servicer or the Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgage Properties and REO Properties. In the event the Servicer or the Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or 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 Mortgaged Property or REO Property is covered thereby) shall be paid by the Servicer as a Servicing Advance. Such master single interest or force placed policy may contain a deductible clause, in which does case the Servicer or the Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the Certificate Account from its own funds the amount not otherwise payable under the master single interest or force-placed 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. (c) Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions Insurance Policy with a Qualified Insurer covering the Servicer's and the Special Servicer's, as applicable, officers and employees and other persons acting on behalf of the Servicer and the Special Servicer in connection with its activities under this Agreement with a deductible clause that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the Fidelity Bond or errors and omission policy as the case may be. The Servicer or the Special Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be named as a loss payee on each such fidelity bond and errors and omissions policy. Notwithstanding the foregoing, so long as the long term debt or the deposit obligations or claims-paying ability of the Servicer (or its immediate or remote parent) is rated at least "___" by ___ and "___" by ___ (if rated by ___), the Servicer shall be allowed to provide self-insurance with respect to a fidelity bond and an Errors and Omissions Insurance Policy. The amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer or the Special Servicer if the Servicer or the Special Servicer, as applicable, were servicing and administering the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for reduction due FNMA or FHLMC. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate of the Servicer or the Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special Servicer and the Servicer will promptly report in writing to depreciationthe Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions Insurance Policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect. The Servicer and the Special Servicer shall each cause the Trustee to be an additional loss payee on any policy currently in place or procured pursuant to the requirements of this Section 3.07(c). (d) At the time the Servicer determines in accordance with the Servicing Standard that any Mortgaged Property shall be in a federally designated special flood hazard area (and such flood insurance has been made available), the Servicer will use its reasonable best efforts to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent available at commercially reasonable rates (as determined by the Servicer in accordance with the Servicing Standards), flood insurance in respect thereof, but only to the extent the related Mortgage Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standards. Such flood insurance shall be in an amount that is at least equal to the lesser of (i) the full replacement cost unpaid principal balance of improvements securing such Serviced the related Mortgage Loan or Serviced Loan Combination or Loan, and (ii) the outstanding principal balance maximum amount of such Serviced Mortgage Loan or Serviced Loan Combinationinsurance which is available under the National Flood Insurance Act of 1968, but, in any event, in an amount sufficient to avoid as amended. If the application cost of any co-insurance clause and (y) all other insurance coverage (including but described above is not limited to coverage borne by the Mortgagor, the Servicer shall promptly make a Servicing Advance for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably requiresuch costs, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply:Section 3.03(c). (Ae) During all such times as any REO Property shall be located in a federally designated special flood hazard area, the Master Special Servicer shall not will cause to be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant maintained, to the terms of the related Mortgage Loan Documents and is extent available at commercially reasonable rates and (as determined by the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the related Borrower is to obtain the requisite insurance coverage, the Master Special Servicer shall (to the extent consistent in accordance with the Servicing Standard) use efforts consistent Standards), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Servicing Standard to cause Trust payable out of the related Borrower REO Account pursuant to obtain Section 3.16(c) or, if the requisite insurance coverage from Qualified Insurers thatamount on deposit therein is insufficient therefor, in each case, have paid by the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the as a Servicing Standard to cause the Borrower under any Serviced Mortgage Loan 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; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Ge Capital Commercial Mortgage Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case Each of each Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer shall and the Special Servicer shall, as to those Mortgage Loans it is obligated to service hereunder, use reasonable its best efforts consistent in accordance with the Servicing Standard to cause the related Borrower Mortgagor to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower the related Mortgagor does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having (even in the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser case of (i) the full replacement cost of improvements securing such Specially Serviced Mortgage Loan or Serviced Loan Combination or (iiLoans) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or shall itself maintain (subject to the Servicing Standardprovisions of this Agreement regarding Nonrecoverable Advances, and further subject to Section 3.11(h) that hereof), to the lender extent the Trustee, as mortgagee on behalf of the Certificateholders, has an insurable interest and to the extent available at commercially reasonable rates) all insurance coverage as is entitled to reasonably require, required under the related Mortgage (subject to applicable law, under the related Mortgage Loan Documents); provided that all of if any Mortgage permits the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required holder thereof to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant dictate to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) if and to the extent that any Serviced Mortgage Loan or Serviced Loan Combination grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to Mortgagor the insurance provider from whom the related Borrower is coverage to obtain the requisite insurance coveragebe maintained on such Mortgaged Property, the Master Servicer or the Special Servicer, as appropriate, shall (to the extent impose such insurance requirements as are consistent with the Servicing Standard) use efforts consistent with the Servicing Standard . The Special Servicer shall cause to cause the related Borrower to obtain the requisite insurance coverage from Qualified Insurers thatbe maintained for each REO Property, in each case, have case with an insurer that possesses the Required Claims-Paying Ratings at the time such policy is purchased, no less insurance coverage is obtained;than was previously required of the related Mortgagor under the related Mortgage and, if the related Mortgage did not so require, hazard insurance, public liability insurance and business interruption or rent loss insurance in such amounts as are consistent with the Servicing Standard, and the Special Servicer shall be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05 (Ca) All such insurance policies shall contain a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of the Mortgaged Properties) or the Special Servicer (in the case of insurance maintained in respect of REO Properties) on behalf of the Trustee, shall be issued by an insurer authorized under applicable law to issue such insurance, and, unless prohibited by the related Mortgage, may contain a deductible clause (not in excess of a customary amount). Any amounts collected by the Master Servicer or Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard) shall be deposited in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer, as applicable, in maintaining any such insurance shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. (i) If the Master Servicer or the Special Servicer shall obtain and maintain a blanket policy insuring against hazard losses on any or all of the Mortgaged Properties (in the case of the Master Servicer) or REO Properties (in the case of the Special Servicer), then, to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings, and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Properties, as applicable, so covered, and the premium costs thereof shall be, if and to the extent they are specifically attributable either to a specific Mortgaged Property during any period that the related Mortgagor has failed to maintain the hazard insurance required under the related Mortgage Loan in respect of such Mortgaged Property or to a specific REO Property, a Servicing Advance reimbursable pursuant to and to the extent permitted under Section 3.05(a); provided that, to the extent that such premium costs are attributable to properties other than Mortgaged Properties and/or REO Properties or are attributable to Mortgaged Properties as to which the hazard insurance required under the related Mortgage Loan is being maintained, they shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such a blanket policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property, as applicable, a hazard insurance policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy (taking into account any deductible clause that would have been permitted therein), promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount of such losses up to the difference between the amount of the deductible clause in such blanket policy and the amount of any deductible clause that would have been permitted under such property specific policy. The Master Servicer and the Special Servicer each agree to prepare and present, on behalf of itself, the Trustee and the Certificateholders, claims under any such blanket policy maintained by it in a timely fashion in accordance with the terms of such policy. (ii) If the Master Servicer shall cause any Mortgaged Property or the Special Servicer shall cause any REO Property to be covered by a master single interest insurance policy naming the Master Servicer or the Special Servicer, as applicable, on behalf of the Trustee as the loss payee, then to the extent such policy (i) is obtained from a Qualified Insurer that possesses the Required Claims-Paying Ratings and (ii) provides protection equivalent to the individual policies otherwise required, the Master Servicer or the Special Servicer, as applicable, shall conclusively be deemed to have no satisfied its obligation beyond using its reasonable efforts to cause such insurance to be maintained on such Mortgaged Property (in the case of the Master Servicer) or REO Property (in the case of the Special Servicer). If the Master Servicer shall cause any Mortgaged Property as to which the related Mortgagor has failed to maintain the required insurance coverage, or the Special Servicer shall cause any REO Property, to be covered by such master single interest insurance policy, then 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 Mortgaged Property or REO Property is covered thereby) paid by the Master Servicer or the Special Servicer, as applicable, shall constitute a Servicing Advance. The Master Servicer shall, consistent with the Servicing Standard to cause and the Borrower under any Serviced terms of the related Mortgage Loan documents, pursue the related Mortgagor for the amount of such incremental costs. All other costs associated with any such master single interest insurance policy (including, without limitation, any minimum or standby premium payable for such policy) shall be borne by the Master Servicer or Special Servicer, as the case may be, without right of reimbursement. Such master single interest insurance policy may contain a deductible clause (not in excess of a customary amount), 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 or REO Property, as the case may be, a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such property specific policy had it been maintained, promptly deposit into the Certificate Account from its own funds (without right of reimbursement) the amount not otherwise payable under the master single interest policy because of such deductible clause, to maintain 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 at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a fidelity bond in such form and amount as would permit it to be a qualified Xxxxxx Xxx or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Each of the Master Servicer and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof 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 the case may be. Such fidelity bond shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. In addition, each of the Master Servicer and the Special Servicer shall at all times during the term of this Agreement keep in force with recognized insurers that possess the Required Claims-Paying Ratings a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligation to service the Mortgage Loans for which it is responsible hereunder, which policy or policies shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae or Xxxxxxx Mac seller-servicer of multifamily mortgage loans. Any such errors and omissions policy, if required, shall provide that it may not be canceled without 30 days' prior written notice to the Trustee. It is understood and agreed that the Rating Agencies have affirmed in writing that the use of certain specified insurance carriers by the Master Servicer, the Special Servicer and/or Sub-Servicers will not, in and of itself, cause a downgrade, qualification or change in the rating assigned to any Class of Certificates, notwithstanding that such insurance carriers do not possess the Required Claims-Paying Ratings as of the Closing Date. It is further understood and agreed that if the claims-paying ratings of any such insurance carrier are downgraded below the level assigned as of the Closing Date, such insurance carrier promptly shall be replaced by a Qualified Insurer that possesses the Required Claims-Paying Ratings. (d) All insurance coverage required to be maintained or that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event this Section 3.07 shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;obtained from Qualified Insurers.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In the case of each The Master Servicer (with respect to Loans that are not Specially Serviced Mortgage Loan or Loans) and the Special Servicer (with respect to Specially Serviced Loan Combination, the Master Servicer Mortgage Loans) shall use reasonable efforts efforts, consistent with the Servicing Standard Standard, to cause the related Borrower to maintain (including identifying the extent to which a Borrower is maintaining insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related each Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, 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 all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain permanently waive any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination requirement by reason of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Mortgage Loan Documents and is available at commercially reasonable rates and the Trustee has an insurable interest; (B) exception); provided that if and to the extent that any Serviced such Mortgage Loan or Serviced Loan Combination grants permits the lender thereunder holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Mortgagor is required to maintain, the Master Servicer or Special Servicer, as the case may be, shall exercise such discretion in a manner consistent with the Servicing Standard; and provided, further, that, if and to the extent that a Mortgage so permits, the Master Servicer or Special Servicer, as the case may be, shall use reasonable efforts to require the related Mortgagor to obtain the requisite required insurance coverage from Qualified Insurers that have a "claims paying ability" or "financial strength" rating, as applicable, of at least "A2" from Moody's and "A" from Fitch and S&P (or, in the case of axx Xxxxxx Agency, xxxx lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency); and provided, further, that the Master Servicer shall obtain or cause to be maintained for any such Mortgaged Property any such insurance that the related Mortgagor is required but fails to maintain, but only to the extent that the Trust has an insurable interest, and such insurance is available at a commercially reasonable rate as determined in accordance with the Servicing Standard. In addition, with respect to coverage for acts of terrorism, the Master Servicer will not be required to maintain such coverage if the risks and costs associated with obtaining or maintaining such coverage outweigh the benefits to the Trust of obtaining or maintaining such coverage, as determined by the Master Servicer in accordance with the Servicing Standard. Upon request, the Master Servicer shall (provide to the Rating Agencies or the Controlling Class Representative in a timely manner such information as the Rating Agencies or the Controlling Class Representative may reasonably request relating to the extent consistent of insurance coverage maintained for acts of terrorism with respect to each of the Mortgage Loans. Any Controlling Class Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties by the related Mortgagor, to the extent such insurance may reasonably be obtained and provided the related loan documents and applicable law give the mortgagee the right to request such insurance coverage and such loan documents require the Mortgagor to obtain earthquake insurance at the request of the mortgagee. Subject to Section 3.17(a), the Special Servicer, in accordance with the Servicing Standard) use efforts consistent , shall also cause to be maintained for each REO Property no less insurance coverage than was previously required of the Mortgagor under the related Mortgage; provided that such insurance is available at commercially reasonable rates as determined in accordance with the Servicing Standard Standard. In addition, with respect to cause coverage for acts of terrorism, the related Borrower Special Servicer will not be required to obtain maintain such coverage if the requisite risks and costs associated with obtaining or maintaining such coverage outweigh the benefits to the Trust of obtaining or maintaining such coverage, as determined by the Special Servicer in accordance with the Servicing Standard; and provided, further, that all such insurance coverage shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a "claims paying ability" or "financial strength" rating, as applicable, of at least "A2" from Moody's and "A" from Fitch and S&P (or, in the case of axx Xxxxxx Agency, xxxx lower rating as will not result in an Adverse Rating Event, as evidenced in writing by such Rating Agency). All such insurance policies shall contain (if they insure against loss to property and do not relate to an REO Property) a "standard" mortgagee clause, with loss payable to the Master Servicer (in the case of insurance maintained in respect of Loans, including Specially Serviced Mortgage Loans), and shall be in the name of the Special Servicer (in the case of insurance maintained in respect of REO Properties), on behalf of the Trustee; and, in each case, have the Required Claims-Paying Ratings at the time such insurance coverage is obtained; (C) shall be issued by a Qualified Insurer. Any amounts collected by the Master Servicer shall have no obligation beyond using its reasonable efforts consistent or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case subject to the rights of any tenants and ground lessors, as the case may be, and in each case in accordance with the terms of the related Mortgage and the Servicing Standard Standard) shall be deposited in the applicable Custodial Account in accordance with Section 3.04(a) in the case of amounts received in respect of a Mortgage Loan, or in the applicable REO Account in accordance with Section 3.16(b), in the case of amounts received in respect of an REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance (including any earthquake insurance maintained at the request of a Controlling Class Certificateholder) shall not, for purposes hereof, including calculating monthly distributions to cause Certificateholders, be added to the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained unpaid principal balance or that the lender is entitled to reasonably require, subject to applicable law, under Stated Principal Balance of the related Mortgage Loan Documents; (D) in no event or REO Loan, notwithstanding that the terms of such loan so permit, but shall be recoverable by the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) not available at any rate or (ii) not available at commercially reasonable rates and the related hazards are not at the time commonly insured against at the then-available rates for properties similar to the related Mortgaged Property and located in or around the region in which the related Mortgaged Property is located;as a Servicing Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CDC Commercial Mortgage Trust 2002-Fx1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) In The Property Manager (other than with respect to Specially Serviced Assets) and the case of each Special Servicer (with respect to Specially Serviced Mortgage Loan or Serviced Loan Combination, the Master Servicer Assets) shall use reasonable efforts consistent in accordance with the Servicing Standard to cause the related Borrower Obligor to maintain (including identifying the extent to which a Borrower is maintaining for each Mortgaged Property all insurance coverage and, if such Borrower does not so maintain, the Master Servicer will itself cause to be maintained with Qualified Insurers having the Required Claims-Paying Ratings) for the related Mortgaged Property (x) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Serviced Mortgage Loan or Serviced Loan Combination or (ii) the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including but not limited to coverage for damage resulting from acts of terrorism) as is required or (subject to the Servicing Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; provided that all of the following conditions and/or limitations shall apply: (A) the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on any Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination unless such insurance policy was in effect at the time of the origination of such Serviced Mortgage Loan or Serviced Loan Combination pursuant to the terms of the related Lease or Mortgage Loan Documents and is available at commercially reasonable rates and Loan, as applicable (including for the Trustee has an insurable interest; (B) avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any Serviced such Lease or Mortgage Loan or Serviced Loan Combination grants permits the lender lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom coverage that the related Borrower Obligor is required to obtain the requisite insurance coveragemaintain, the Master Servicer Property Manager or the Special Servicer, as the case may be, shall (to the extent exercise such discretion in a manner consistent with the Servicing Standard) use efforts consistent with ; and provided, further, that, if and to the Servicing Standard to cause extent that a Lease or Mortgage Loan so permits, the related Borrower Obligor shall be required to obtain the requisite required insurance coverage from Qualified Insurers thatthat have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, which are licensed to do business in each casethe state wherein the related Obligor or the Mortgaged Property subject to the policy, have as applicable, is located. If such Obligor does not maintain the Required Claims-Paying Ratings at required insurance or, with respect to any Environmental Policy in place as of the time applicable First Collateral Date, the Property Manager will itself cause such insurance coverage is obtained; to be maintained with Qualified Insurers meeting such criteria; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (Cas mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Master Servicer shall have no obligation beyond using Property Manager has determined (in its reasonable efforts consistent judgment in accordance with the Servicing Standard to cause the Borrower under any Serviced Mortgage Loan to maintain the insurance required to be maintained or Standard) that the lender is entitled to reasonably require, subject to applicable law, under the related Mortgage Loan Documents; (D) in no event shall the Master Servicer be required to cause the Borrower under any Serviced Mortgage Loan to maintain, or itself obtain, insurance coverage that the Master Servicer has determined is either (i) such insurance is not available at any rate or (ii) not available at a commercially reasonable rates rate and the related subject hazards are not at the time not commonly insured against at the then-available rates for by prudent owners of properties similar to the related Mortgaged Property and located in or around the region in which such Mortgaged Property is located or (ii) such insurance is not available at any rate. Subject to Section 3.17(b), the Special Servicer shall also use reasonable efforts to cause to be maintained for each REO Property no less insurance coverage than was previously required of the Obligor under the related Mortgage or Lease and at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of such REO Property and consistent with the Servicing Standard; provided, that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and “A” by S&P. The cost of any such insurance coverage obtained by either the Property Manager or the Special Servicer shall be a Property Protection Advance to be paid by the Property Manager. All such insurance policies shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Property Manager, as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by the Property Manager or the Special Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or amounts to be released to the related Tenant, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 2.11 of the Indenture. (b) The Property Manager or Special Servicer may satisfy its obligations under Section 3.07(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, the Property Manager or the Special Servicer shall obtain and maintain, or cause to be obtained and maintained on behalf of each applicable Issuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by a Tenant or Borrower due to a default by such Tenant or Borrower under the insurance covenants of its Lease or Mortgage Loan or because a Tenant or Borrower permitted to self-insure fails to pay for casualty losses) on the applicable Mortgaged Properties that it is located;required to service and administer, which policy shall (i) be obtained from a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required under Section 3.07(a). The Property Manager and the Special Servicer shall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained for Mortgaged Properties or REO Properties) without right of reimbursement; provided, that if the Property Manager or the Special Servicer, as the case may be, causes any Mortgaged Property or REO Property to be covered by such blanket policy in order to satisfy such obligations, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property shall constitute, and be reimbursable as, a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). If the Property Manager or Special Servicer, as applicable, causes any Mortgaged Property or REO Property to be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (which shall not include any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Protection Advance (it being understood that such incremental costs incurred by the Special Servicer shall be paid by the Property Manager to the Special Servicer and that such payment shall constitute, and be reimbursable as, a Property Protection Advance). Any such policy may contain a deductible clause (not in excess of a customary amount) in which case the Property Manager or the Special Servicer, as appropriate, shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a hazard insurance policy complying with the requirements of Section 3.07(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into the Collection Account from its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. The Property Manager or the Special Servicer, as appropriate, shall prepare and present, on behalf of itself, the Indenture Trustee and the applicable Issuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to the Property Manager as agent of and for the account of the applicable Issuer, the Noteholders and the Indenture Trustee. (c) Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) keep in force with a Qualified Insurer having a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such fidelity bond would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such fidelity bond shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager, the Special Servicer and the Back-Up Manager shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such insurance would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such insurance shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers. Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Serviced Assets exist as part of the Collateral) also, on behalf of the Issuers, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as does not adversely affect any rating assigned by any Rating Agency to the Notes; provided, that, unless any Rating Agency then rating any Notes at the request of an Issuer states that the form or amount of any such insurance would be the sole cause of or be a material reason for a downgrade, qualification or withdrawal of any rating then assigned by such Rating Agency to such Notes, the form and amount of such insurance shall be deemed to not adversely affect any rating assigned by any Rating Agency to the Notes. Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to the Issuers and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee. The insurance described in this clause (c) shall be required to include coverage in respect of losses that may be sustained as a result of an officer’s or employee’s of the Property Manager or the Special Servicer misappropriation of funds and errors and omissions. If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch, the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage; provided, that Spirit Realty may not self-insure with respect to any such insurance coverage or fidelity bond.

Appears in 1 contract

Samples: Property Management and Servicing Agreement (Spirit Realty Capital, Inc.)

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