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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 3.15(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 8 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2016-Bnk2), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2017-Gs7), Pooling and Servicing Agreement (UBS Commercial Mortgage Trust 2017-C1)

AutoNDA by SimpleDocs

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Property Protection 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , as determined ((i) prior to the occurrence and continuance of any Control Termination Event and (ii) other than with respect to any Excluded Loan, any determination that such insurance coverage is not available or not available at commercially reasonable rates shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing CertificateholderHolder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Nonnon-Specially Serviced LoanMortgage Loans) or the Special Servicer (with respect to a Specially Serviced LoanMortgage Loans); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Nonnon-Specially Serviced LoanMortgage Loans) or the Special Servicer (with respect to a Specially Serviced LoanMortgage Loans) with the consent (in respect of the Directing Certificateholder (any Mortgage Loan other than an Excluded Loan and unless a Control Termination Event has occurredoccurred and is continuing) and after consultation by the Special Servicer with consent of the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) Directing Holder 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. The Master Servicer and the 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 3.15(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines (unless a Control Termination Event has occurred and is continuing and other than with respect to any Excluded Loan, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such partyHolder) that such insurance is 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 the 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 to do so, shall be advanced by the Master Servicer as a Servicing Property Protection 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 Collection 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 a 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 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Property Protection 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) Servicer, as applicable, determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 maintainedmaintained following such determination (if made by the Master Servicer) or following notice of such determination (if made by the Special Servicer). The Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)Holder, neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure unless the Master Servicer or the Special Servicer is required to take any immediate action pursuant to the Servicing Standard or other servicing requirements of this Agreement and the Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

Appears in 8 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2018-Gs9), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2017-C42), Pooling and Servicing Agreement (Bank 2017-Bnk9)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Serviced Mortgage Loan), Specially Managed Units) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertiesSpecially Managed Units) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Tenant or Borrower to maintain for each Property all insurance coverage as is required under the terms of the related Lease or Mortgage Loan documents except Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease or Mortgage Loan permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant or Borrower is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard, 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 availableand to the extent that a Lease or Mortgage Loan so permits, can the related Tenant or Borrower shall be obtained required to obtain the required insurance coverage from Qualified Insurers that 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 place as of the related Series Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Property Manager has determined (in its reasonable judgment in accordance with the Servicing Standard) that either (i) such insurance is not available at a commercially reasonable ratesrate and the subject hazards are at the time not commonly insured against by prudent owners of properties similar to the Property located in or around the region in which such Property is located or (ii) such insurance is not available at any rate. The Master Servicer and the Special Servicer shall also use reasonable efforts to cause to 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 3.15(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 maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less property insurance coverage than was previously required of the Mortgagor Tenant or Borrower under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided, that is an Excluded Loan as to such party) that all such insurance is 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 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 Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer 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 (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in applicable Issuer and 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 applicableIndenture Trustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 5 contracts

Samples: Management and Servicing Agreement (Store Capital LLC), Management and Servicing Agreement (STORE CAPITAL Corp), Management and Servicing Agreement (STORE CAPITAL Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable best efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan documents, all insurance Insurance Policy 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 the Special Servicer, as the case may be). 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 Insurance Policy coverage is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made , consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced LoanServicing Standard); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance Insurance Policy 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesStandards. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 determinationLoan. All such 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 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 REO 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), ) and (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 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 Standard Standards and the provisions of the related Mortgage Loan documentsLoan) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedAdvance.

Appears in 4 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect and the Special Servicer shall, as to the those Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall it is obligated to service hereunder, use its best efforts consistent in accordance with the Servicing Standard to cause the related Mortgagor to maintain (other than with respect to a Non-and, if the related Mortgagor does not so maintain, the Master Servicer (even in the case of Specially Serviced Mortgage Loan)Loans) shall itself maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances, and the Special Servicer (with respect further subject to REO Properties other than any Non-Serviced Mortgaged PropertiesSection 3.11(h) shall maintainhereof), to the extent required by the terms Trustee, as mortgagee on behalf of the related Mortgage Loan documentsCertificateholders, has an insurable interest and to the extent available at commercially reasonable rates) 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanapplicable law); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 ratesStandard. The Master Servicer and the Special Servicer shall cause to 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 3.15(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 maintained for each REO Property (other than any NonProperty, in each case with an insurer that possesses the Required Claims-Serviced Mortgaged Property) Paying Ratings at the time such policy is purchased, no less insurance coverage than was previously required of the related Mortgagor under the related Mortgage Loan documents unless and, if the Special Servicer determines 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 consent of the Directing Certificateholder (prior to the occurrence Servicing Standard, and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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) be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05(a). All such insurance policies shall 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 the Mortgaged 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 on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties)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, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special Servicer, as applicable, 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of 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 and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 4 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans Loans) or the Special Servicer (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loanwith respect to REO Properties) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged PropertyProperties) 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertyProperties) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect with, prior to the occurrence and continuance of a Specially Serviced Loan) with Control Event, the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the Special Servicer shall will be entitled to rely on insurance consultants (at the applicable servicerMaster Servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event, with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-C8), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-C8), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-C6)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 Property 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer shall be obligated to use efforts consistent with (at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or direction of the Special Servicer (with respect to in the case of a Specially Serviced Loan) with the consent of the Directing Certificateholder shall (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is extent available at commercially reasonable rates. Subject to Section 3.15(aterms) obtain such insurance (which may be through a master or single interest policy) and the costs cost (including any deductible relating to such insurance) of such insurance being reimbursed (or paid 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 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 specific Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 a Servicing Advance and shall be recoverable 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred 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 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 to do so, shall be advanced by the Master Servicer Federal Emergency Management Agency 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 Collection 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 having special flood hazards 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.becomes located

Appears in 3 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination EventEvent with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except documents; provided, however, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) will not be required to cause the Mortgagor to maintain and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) will not be required to maintain terrorism insurance to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in or if the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be)Trustee does not have an insurable interest therein. 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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)) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2014-C20), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , as determined ((i) prior to the occurrence and continuance of any Control Event or (ii) other than with respect to the Excluded Loan, any determination that such insurance coverage is not available or not available at commercially reasonable rates shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Special Servicer with ((i) unless a Control Event has occurred and is continuing or (ii) other than with respect to a Non-Specially Serviced the Excluded Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder ((i) prior to the occurrence and continuance of a Control Termination EventEvent or (ii) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an the Excluded Loan as to such partyLoan, 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 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C10), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C10), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C10)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect and the Special Servicer shall, as to the those Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall it is obligated to service hereunder, use its best efforts consistent in accordance with the Servicing Standard to cause the related Mortgagor to maintain (other than with respect to a Non-and, if the related Mortgagor does not so maintain, the Master Servicer (even in the case of Specially Serviced Mortgage Loan)Loans) shall itself maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances, and the Special Servicer (with respect further subject to REO Properties other than any Non-Serviced Mortgaged PropertiesSection 3.11(h) shall maintainhereof), to the extent required by the terms Trustee, as mortgagee on behalf of the related Mortgage Loan documentsCertificateholders, has an insurable interest and to the extent available at commercially reasonable rates) 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanapplicable law); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 ratesStandard. The Master Servicer and the Special Servicer shall cause to 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 3.15(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 maintained for each REO Property (other than any NonProperty, in each case with an insurer that possesses the Required Claims-Serviced Mortgaged Property) Paying Ratings at the time such policy is purchased, no less insurance coverage than was previously required of the related Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interestand, 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loandid not so require, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Defaulthazard insurance, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.public liability

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , as determined ((i) prior to the occurrence and continuance of any Control Event or (ii) any determination that such insurance coverage is not available or not available at commercially reasonable rates shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer , with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) 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 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-Lc11), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-Lc11), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-Lc11)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to Mortgage Loans) or the Mortgage Loans Special Servicer (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loanwith respect to REO Properties) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, Note 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 the Special Servicer, as the case may be)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 (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged PropertyProperties) shall maintain maintain, for each Mortgage Loan all insurance coverage as is required under the related Mortgage, but 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan , as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made determined by the Master Servicer (with respect to or in the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) case of insurance against property damage resulting from terrorist or the Special Servicer (similar acts or insurance with respect to REO Properties other than any Non-Serviced Mortgaged PropertyProperties, the Special Servicer) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 Master Servicer or, with respect to REO Property, or the Special Servicer, as applicable, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard 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 shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and rates as determined by the Special Servicer, provided that the Master Servicer shall be entitled to conclusively rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratessuch determination. Subject to Section 3.15(a3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is not available at commercially reasonable rates or rates, provided 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 such 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 and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection 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 and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. 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 interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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% [5]% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

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-C17), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C15)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans and the Trust Companion Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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) ), Trust Companion Loans 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan or Trust AB Whole Loan, if the Directing Certificateholder’s consent is required and 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 related Subordinate Loan-Specific Directing Certificateholder)) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans and Trust Companion 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer , with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such partyconsent of the Directing Certificateholder) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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, Trust Companion Loan and Serviced Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan, Trust 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 3.14(c3.16(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 Collection Certificate Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan or Trust 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 (other than a Non-Serviced 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 Trust Companion Loan or Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C25), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C24), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C23)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The In the case of each Mortgage Loan, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable efforts consistent with the Servicing Standard to cause each Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master Servicer will itself cause to maintain be maintained, for each Mortgaged Property (other than with respect including each Mortgaged Property relating to a Non-any Specially Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required required, subject to applicable law, under the related Mortgage Loan documents except loan documents; provided that, if and to the extent that any such loan documents permit the failure holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advancemaintain, the Master Servicer (with respect to the Mortgage Loans (other than shall exercise such discretion in 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 manner consistent with the Servicing Standard taking 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 the insurance in place at the closing of the Mortgage Loan, provided thatloan origination, with respect a view towards requiring insurance comparable to the immediately preceding provisothat 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 obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor required to maintain (or to itself maintain) such insurance against property damage resulting from terrorist or similar acts unless coverage upon the related Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and do so 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. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any extent that such insurance is available at commercially reasonable ratesrates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related Mortgage Loan loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided that is an Excluded Loan as to such party) that all such insurance is not available at commercially reasonable rates required to be maintained by Master Servicer or that the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on 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 Special Servicer’s determinationhighest 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 ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 the Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion Loanor shall name the Trustee) as the insured, other than REO Properties) or with loss payable 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in into the Collection 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 costs cost incurred by the Master Servicer or Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by ; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense on behalf of the Trust payable out to enforce any obligations of the related REO Account pursuant Mortgagor under such Mortgage Loan. Costs to Section 3.14(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 or Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to this Section 3.07 shall apply be paid by and reimbursable 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 maintainor the Special Servicer, and will not be in default for failing to obtainas the case may be, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan (other than as a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesServicing Advance. Notwithstanding the foregoing, if as of the Closing Date the loan documents specifically and expressly set forth terms requiring insurance coverage against terrorist or similar acts for a Mortgage Loan with respect 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 Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) 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 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 interestsCovered Risks”), the Master Servicer shall, consistent with the Servicing Standard, (A) monitor shall use reasonable efforts in accordance with the Servicing Standard whether to determine whether, upon renewal of the Mortgagor’s property or casualty insurance policies for (including any all-risk insurance policy), any of the related Mortgaged Property contain Additional Exclusions; provided that Covered Risks are excluded from coverage. If any of the Covered Risks are determined by the Master Servicer to be excluded from coverage, the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either (i) purchase insurance against acceptable to the risks specified Master Servicer in accordance with the Additional Exclusions Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide an a written explanation as to its reasons for failing to purchase such insurance and (C) if insurance. Notwithstanding the related Mortgage Loan is a Specially Serviced Loanforegoing, notify with the written consent of 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 in accordance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by Servicing Standard the Master Servicer pursuant may waive the requirement to clause (B) above. If procure insurance covering any of the Covered Risks if the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that (1) insurance covering any such failure Covered Risks is not an Acceptable Insurance Defaultavailable at a commercially reasonable price, the Special Servicer or (with regard 2) based on information reasonably available to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicerafter due inquiry, as applicable, shall promptly deliver any such conclusions in writing Covered Risks are at that time not commonly insured against for properties similar to the 17g-5 Information Provider for posting to Mortgaged Property and located in or around the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of region in which the ten (10) highest outstanding Stated Principal Balances of all of Mortgaged Property is located unless the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans Loan is greater than $[_________]. If the Stated Principal Balance of the Mortgage Loan is greater than $[_________], then included 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 Trustsecond 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. During 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 or Servicer, the Special Servicer is evaluating the availability of such insurance or waiting for a response from and/or the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall be liable for any loss related to its failure to require the a Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. If the Master Servicer will not itself requires the Mortgagor to maintain such insurance or cause 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 maintainedthe 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage and any AB Whole Loan) and any related Serviced Companion Loanor the Special Servicer (with respect to REO Properties) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, documents all insurance coverage as is required under the related Mortgage Loan documents or AB Whole Loan 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 the Special Servicer, as the case may be)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 (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion AB Whole Loan) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged PropertyProperties) 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and or any related Serviced Companion AB Whole Loan) or the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertyProperties) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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 or AB Whole Loan, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect with, prior to the occurrence and continuance of a Specially Serviced Loan) with Control Event, the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the Special Servicer shall will be entitled to rely on insurance consultants (at the applicable servicerMaster Servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents or AB Whole Loan unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event, with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 Mortgage Loan, AB Whole 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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) and AB Whole Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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 or Subordinate Companion Loan (if any)Loan, as applicable, notwithstanding that the terms of such Mortgage Loan or Serviced Subordinate Companion Loan Loan, as applicable, 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 3.14(c3.16(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 Collection Certificate Account). The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced each AB 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 (other than a Non-Serviced 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) or AB Whole Loan reasonably requires from time to time in order to protect its interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-Cibx), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-Cibx)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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, andshall 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 provided further that, if availableand to the extent that a Mortgage so permits, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer related Mortgagor shall be entitled required to rely on obtain the required insurance consultants coverage from Qualified Insurers that, in each case, have a claims-paying rating no lower than two rating categories below the highest rated Certificates outstanding, and in any event no lower than "___" (at or an equivalent rating), from each of the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesRating Agencies. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of at a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interestminimum, 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) 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 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, 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 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 (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion Loanor shall name the Trustee as the insured, other than REO Properties) or with loss payable 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 documentsStandard) 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) and only in the event the Trustee has an insurable interest therein and such insurance is currently available to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination EventEvent with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C16), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C16)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (Servicer, with respect to each of the Mortgage Loans (other than a Non-Loans, including Specially Serviced Mortgage Loan) Mortgaged Loans, and any related Serviced Companion Loan) the Special Servicer, with respect to REO Properties, shall use its efforts reasonable efforts, consistent with the Servicing Standard Standard, to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). If if the Mortgagor does not so maintain, shall itself 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 for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided, further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under the terms of the Mortgage Loans (other than a Non-Serviced or the Mortgage Loan) and any related Serviced Companion Loan) or Loan documents, the Special Servicer (with respect to REO may require that earthquake insurance be secured for one or more Mortgaged Properties other than any Non-Serviced Mortgaged Property) except to at the extent that the failure expense of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer Trust Fund (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, including the Special Servicer, as applicable, shall impose or maintain, as applicable, 's costs and expenses incurred in obtaining such insurance requirements as are consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyinsurance)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent as of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Closing Date; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 (and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)) (in the case of insurance maintained in respect of Mortgage Loans Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Master Servicer or the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any rate; (b) such insurance is not available from a Qualified Insurer (provided that the Special Servicer shall obtain such insurance from the next highest rated insurer offering such insurance at commercially reasonable rates); (c) subject to the prior approval of the Controlling Class Representative (which approval is deemed granted if not denied within 10 Business Days after its receipt of the Master Servicer's or the Special Servicer's request for such approval), such insurance is not available at commercially reasonable rates and, as determined by the Master Servicer or the Special Servicer following due inquiry conducted in a manner consistent with the Servicing Standard, the subject hazards are not 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 the then current market rates); or (d) the Trustee does not have an insurable interest in the related Mortgaged Property or REO Property. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand 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 (other than a Loan Combination), or in the related Loan Combination Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of a Loan Combination, 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) use reasonable efforts to monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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) 10 highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust Fund or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the TrustTrust Fund (and, if a Loan Combination satisfies clause (i) and/or clause (ii), the Special Servicer shall also inform the related Non-Trust Noteholder(s) as to such conclusion). During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans Loans) or the Special Servicer (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loanwith respect to REO Properties) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged PropertyProperties) 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder , as determined (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and prior to the occurrence and continuance of a related AB Control Appraisal PeriodEvent, with the consent of the holder of the related AB Subordinate Companion LoanDirecting Certificateholder) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertyProperties) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect with, prior to the occurrence and continuance of a Specially Serviced Loan) with Control Event, the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the Special Servicer shall will be entitled to rely on insurance consultants (at the applicable servicerMaster Servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event, with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 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) 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) 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill be required to, consistent with the Servicing Standard, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2011-C5), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2011-C5)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to or the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) Special Servicer, as applicable, shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents Mortgage, 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 Master Servicer or, with respect to REO Property, or 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 LoanStandards, provided that, with respect to the immediately preceding proviso, the Master Servicer shall or the Special Servicer, as applicable, will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesDefault. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 determinationLoan. 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 or (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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsLoan) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 stated principal balance of the Mortgage Loans then included in the Trust. During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from insurance, the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Mort Sec Corp Ps THR Certs Ser 2003-Ln1), 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) The Each of the Master Servicer (with respect and the Special Servicer shall, as to the those Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall it is obligated to service hereunder, use its best efforts consistent in accordance with the Servicing Standard to cause the related Mortgagor to maintain (other than with respect to a Non-and, if the related Mortgagor does not so maintain, the Master Servicer (even in the case of Specially Serviced Mortgage Loan)Loans) shall itself maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances, and the Special Servicer (with respect further subject to REO Properties other than any Non-Serviced Mortgaged PropertiesSection 3.11(h) shall maintainhereof, and to the extent required by the terms Trustee, as mortgagee on behalf of the related Mortgage Loan documentsCertificateholders, has an insurable interest and to the extent available at commercially reasonable rates) 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanapplicable law); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 ratesStandard. The Master Servicer and the Special Servicer shall cause to 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 3.15(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 maintained for each REO Property Property, in each case with an insurer that possesses (other than any Nonor whose obligations are guaranteed or backed, in writing, by an entity having) the Required Claims-Serviced Mortgaged Property) Paying Ratings at the time such policy is purchased, no less insurance coverage than was previously required of the related Mortgagor under the related Mortgage Loan documents unless and, if the Special Servicer determines 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 consent of the Directing Certificateholder (prior to the occurrence Servicing Standard, and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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) be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05(a). All such insurance policies shall 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 the Mortgaged 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 on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties)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, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) 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 costs cost incurred by the Master Servicer or the Special Servicer, as applicable, 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, solely for purposes of 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 and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by the Special Servicer ; provided, however, that this provision is in maintaining any such Insurance Policies with respect no way intended to REO Properties shall be an expense of the Trust payable out of affect amounts due and owing from the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Advance (so long as Mortgagor under 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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)) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 LoanLoan 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 applicable, and, if available, can be obtained at commercially reasonable rates, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyCertificateholder)) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C22), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (Servicer, with respect to each of the Mortgage Loans (other than a Non-Loans, including Specially Serviced Mortgage Loan) Mortgaged Loans, and any related Serviced Companion Loan) the Special Servicer, with respect to REO Properties, shall use its efforts reasonable efforts, consistent with the Servicing Standard Standard, to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documentsDocuments, 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 the Special Servicer, as the case may be). If if the Mortgagor does not so maintain, shall itself 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 for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under the terms of the Mortgage Loans (other than a Non-Serviced or the Mortgage Loan) and any related Serviced Companion Loan) or Loan Documents, the Special Servicer (with respect to REO may require that earthquake insurance be secured for one or more Mortgaged Properties other than any Non-Serviced Mortgaged Property) except to at the extent that the failure expense of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer Trust Fund (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, including the Special Servicer, as applicable, shall impose or maintain, as applicable, 's costs and expenses incurred in obtaining such insurance requirements as are consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyinsurance)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent as of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Closing Date; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 (and, in the case of the Great Mall Loan Pair, the Great Mall B-Noteholder) (in the case of insurance maintained in respect of Mortgage Loans Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documentsDocuments), (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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan Documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Master Servicer or the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any 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 (c) subject to the prior approval of the Controlling Class Representative or, in the case of the Great Mall Loan Pair, the Great Mall Controlling Party (which approval is deemed granted if not denied within 10 Business Days after its receipt of the Master Servicer's or the Special Servicer's request for such approval), such insurance is not available at commercially reasonable rates and the subject hazards are not 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 Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand 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 (other than the Great Mall Loan Pair), or in the Great Mall Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of the Great Mall Loan Pair, 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) use reasonable efforts to monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Fund or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the TrustTrust Fund (and, if the Great Mall Loan Pair satisfies clause (i) and/or clause (ii), the Special Servicer shall also inform the Great Mall B-Noteholder as to such conclusion). During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable best efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan documents, all insurance Insurance Policy 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 the Special Servicer, as the case may be). 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 Insurance Policy coverage is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made , consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced LoanServicing Standards); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance Insurance Policy 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesStandards. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance Insurance Policy coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 determinationLoan. All such 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 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 REO 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), ) and (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 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 Standard Standards and the provisions of the related Mortgage Loan documentsLoan) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of thereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedAdvance.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect with, prior to the occurrence and continuance of a Specially Serviced Loan) with Control Event, the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event, with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-Lc9), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2012-Lc9)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-and the Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loanor the Special Servicer (with respect to the REO Properties) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain maintain, (other than with respect to a Non-Serviced the Universal Hotel Portfolio Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documentsLoan, 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 the Special Servicer, as the case may be)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 (other than and at the direction of the Special Servicer in the case of a Non-Specially Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties Properties) shall maintain, for each Mortgage Loan (other than a Non-Serviced Mortgaged Propertythe Universal Hotel Portfolio Mortgage Loan) 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 Master Servicer or, with respect to REO Property, or 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 LoanStandards, provided thatprovided, that with respect to the immediately preceding proviso, the Master Servicer shall will not be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless if the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Servicer) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is 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 determinationrates. 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 and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection 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 and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. 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 interests, the Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the related Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by the Special Servicer) shall notify the Master Servicer and the Master Servicer shall be required to use efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain such insurance to be maintained. The Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions existinsurance. Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)insurance, neither the Master Servicer nor the Special Servicer Directing Certificateholder will be liable for any loss related to its the failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (JPMorgan Chase Commercial Mortgage Securities Corp Series 2005-Ldp3), Pooling and Servicing Agreement (JPMorgan Chase Commercial Mortgage Securities Corp Series 2005-Ldp3)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to or the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) Special Servicer, as applicable, shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan documents, and Companion Loan 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 Master Servicer or, with respect to REO Property, or 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 LoanStandards, provided that, with respect to the immediately preceding proviso, the Master Servicer shall or the Special Servicer, as applicable, will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 beapplicable, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 determinationCompanion Loan. 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 and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection 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 and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection Account)Advance. The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced the Grace Building 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates". Notwithstanding the foregoing, with respect to the Mortgage Loans or the Grace Building Whole Loan (other than a Non-Serviced Mortgage Loanas applicable) 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) or the Grace Building Whole Loan reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from insurance, the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect to in the case of Mortgage Loans and Serviced Whole Loans (other than a Specially Serviced Mortgage Loans and Non-Serviced Mortgage LoanLoans)) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-solely in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan documents, Mortgaged Property 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 such insurance coverage is an Acceptable Insurance Default (and except available at commercially reasonable terms as provided in the next sentence with respect to determined by the Master Servicer or the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any provided that any such determination that such insurance coverage is not available or not available at commercially reasonable rates shall terms shall, subject to Section 3.24(g), be made with consented to by the consent Majority Certificateholder of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced LoanControlling Class); 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, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or REO Loan) shall be obligated (to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (extent available at commercially reasonable terms as determined by the Master Servicer (with respect Servicer, which shall be entitled to a Non-Specially Serviced Loan) rely on an opinion of counsel or insurance consultants in making such determination, provided that, subject to the Special Servicer (with respect Servicing Standard, such final determination shall be consented to a Specially Serviced Loan) with by the consent Majority Certificateholder of the Directing Certificateholder Controlling Class) obtain such insurance (unless which may be through a Control Termination Event has occurredmaster or single interest policy) and after consultation the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Special Master Servicer with in obtaining advice of counsel or insurance consultants) of such insurance (or in the Risk Retention Consultation Party 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 6.08(a3.05(a) (or 3.05(e). If the Master Servicer or Special Servicer, as the case may be, determines in each case, other than accordance with respect to any Excluded Loan as to such party)) and only in the event preceding provisions of this paragraph that the Trustee has an insurable interest therein and such applicable insurance is not available to at commercially reasonable terms, 152 the Master Servicer or the Special Servicer, as the case may be, andshall 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 availableand 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, can be obtained at commercially use reasonable ratesefforts to cause the related 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 or Serviced Whole Loan. The 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 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 or Serviced Whole Loan permit the mortgagee to require the Mortgagor to obtain such insurance, the Master Servicer (or in the case of any 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 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(e); provided, that the Master Servicer or Special Servicer shall not be entitled required to rely on insurance consultants incur any such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided, further, if the Master Servicer or Special Servicer, as applicable, shall determine that the payment of such amount is (at i) necessary to preserve the applicable servicer’s expenserelated Mortgaged Property and (ii) would be in determining whether the best interest of the Certificateholders (or with respect to any insurance is available at commercially reasonable ratesServiced 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Propertyto the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines or as is consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Servicing Standard. All such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the Master Servicer policies 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 Mortgaged 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 on behalf 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 applicableTrustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsor Serviced Whole Loan documents and the Servicing Standard) shall be deposited in (or remitted for deposit to) the Collection 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 REO Property. Any costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid outstanding principal balance of the related Mortgage Loan and or Serviced Companion Loan (if any)Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Whole Loan so permit. Any cost incurred by the Special Servicer in maintaining any such Insurance Policies with respect to REO Properties , but shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced recoverable 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 Collection Account). The foregoing provisions of this pursuant to 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 (other than a Non-Serviced 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 terrorism3.05(a) 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special ServicerSection 3.05(e), as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C12), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C12)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with Loans to the Servicing Standard to cause extent that the Mortgagor to maintain (Trust Fund has an insurable interest, but other than with respect to a Nonthe 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 other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan 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 Trust Fund has an Acceptable Insurance Default (and except as provided in the next sentence insurable interest, but other than with respect any REO Property related to the Master Servicer 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan or the Special Servicer, as the case may be). 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 NonGECMC 2007-C1 Serviced Mortgage Loan, as applicable) and any related Serviced Companion Loan) or shall, consistent with the Special Servicer (with respect Servicing Standard, cause to REO Properties other than a Non-Serviced be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. For the avoidance of doubt, REO Property with respect to the Non-Serviced Mortgage Loans is excluded for all purposes from this Section 3.07. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless such insurance was required at similar acts, if and only if the time of origination of Special Servicer, in consultation with the related Mortgage Controlling Class Representative, and, with respect to each Co-Lender Loan (other than a the Non-Serviced Mortgage LoanLoans), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) and such insurance is currently not available at any rate or (b) such insurance is not available at commercially reasonable rates. Notwithstanding reasonably rates and that such hazards are not at the foregoing, with respect time commonly insured against for properties similar to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) Mortgaged Property and any related Serviced Companion Loan that either (x) require located in or around 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 region in types and against which 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 interestsMortgaged Property is located; provided, however, the Master Servicer shallControlling 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, notify exigent circumstances do not allow 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 consult with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) Controlling Class Representative or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance DefaultCompanion Holder, if applicable, the Special Servicer (with regard shall not be required to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoredo so; provided, the Master Servicer or the Special Servicerfurther, as applicablethat, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. The Special Servicer shall promptly notify the Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

Appears in 2 contracts

Samples: Intercreditor Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31), Distribution Instructions (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect and the Special Servicer shall, as to the those Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall it is obligated to service hereunder, use its best efforts consistent in accordance with the Servicing Standard to cause the related Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan)and, and if the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent related Mortgagor is required by the terms of the related Mortgage Loan documentsand does not so maintain, the Master Servicer (even in the case of Specially Serviced Mortgage Loans) shall itself 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 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanapplicable law); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 ratesStandard. The Master Servicer and the Special Servicer shall cause to 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 3.15(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 maintained for each REO Property (other than any NonProperty, in each case with an insurer that possesses the Required Claims-Serviced Mortgaged Property) Paying Ratings at the time such policy is purchased, no less insurance coverage than was previously required of the related Mortgagor under the related Mortgage Loan documents unless and, if the Special Servicer determines 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 consent of the Directing Certificateholder (prior to the occurrence Servicing Standard, and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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) be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05(a). All such insurance policies shall 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 the Mortgaged 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 on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties)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, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special Servicer, as applicable, 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of 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 and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-1), 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) The applicable Master Servicer (with respect to the Mortgage Loans (other than a Non-and the Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loanor the Special Servicer (with respect to the REO Properties) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documentsLoan, 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 the Special Servicer, as the case may be)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 shall maintain, for each 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 Loan 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 such Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 applicable 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 LoanStandards, provided thatprovided, that with respect to the immediately preceding proviso, the such Master Servicer shall will not be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless if the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is 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 determinationrates. All Insurance Policies maintained by the Master Servicer 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 (other than any Non-Serviced Mortgage Loan), including any related Serviced and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 applicable Master 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the applicable Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the applicable 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 Collection 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)Loan, 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 3.14(c3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable 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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. 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 interests, the applicable Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. If the Master Special Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) applicable Master Servicer, as applicable, determines in accordance with the related Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard or the applicable Master Servicer, as applicable, be required to such determination made by the Special Servicer) shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain such insurance to be maintained. The Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions existinsurance. Furthermore, the Master Special Servicer or the Special applicable Master Servicer, as applicable, shall promptly deliver inform the Rating Agencies as to 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 Master Special Servicer or the Special Servicer a Master Servicer, as applicable, is evaluating the availability of such insurance insurance, none of the Special Servicer, any Master Servicer or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and the such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (JPMorgan Chase Commercial Mortgage Securities Corp. Series 2005-Ldp5), Pooling and Servicing Agreement (JPMorgan Chase Commercial Mortgage Securities Corp. Series 2005-Ldp5)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect shall, as to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintainthose Mortgage Loans it is obligated to service hereunder, cause to the extent required by the terms of the related be maintained for each such Mortgage Loan 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanapplicable law); provided, however, 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 Special Servicer or the Master Servicer or, with respect to REO Property, the Special Servicer, as applicableappropriate, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 ratesStandard. The Master Servicer and the Special Servicer shall also cause to 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 3.15(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 maintained for each REO Property (other than any NonProperty, in each case with an insurer that possesses the Required Claims-Serviced Mortgaged Property) Paying Ratings at the time such policy is purchased, no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless and, if the Special Servicer determines 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 consent of the Directing Certificateholder (prior to the occurrence Servicing Standard, and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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) be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05(a). All such insurance policies shall 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 the Mortgaged 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 on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties)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, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special Servicer, as applicable, 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (Servicer, with respect to each of the Mortgage Loans (other than a Non-Loans, including Specially Serviced Mortgage Loan) Mortgaged Loans, and any related Serviced Companion Loan) the Special Servicer, with respect to REO Properties, shall use its efforts reasonable efforts, consistent with the Servicing Standard Standard, to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). If if the Mortgagor does not so maintain, shall itself 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 for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided, further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under the terms of the Mortgage Loans (other than a Non-Serviced or the Mortgage Loan) and any related Serviced Companion Loan) or Loan documents, the Special Servicer (with respect to REO Properties other than any Non-may require that earthquake insurance be secured for one or more Serviced Mortgaged Property) except to Properties at the extent that the failure expense of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer Trust Fund (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, including the Special Servicer, as applicable, shall impose or maintain, as applicable, 's costs and expenses incurred in obtaining such insurance requirements as are consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyinsurance)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent as of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Closing Date; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 (and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)) (in the case of insurance maintained in respect of Mortgage Loans Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Master Servicer or the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any rate; (b) such insurance is not available from a Qualified Insurer (provided that the Master Servicer or the Special Servicer, as applicable, shall obtain such insurance from the next highest rated insurer offering such insurance at commercially reasonable rates); (c) subject to the prior approval of the Controlling Class Representative (which approval is deemed granted if not denied within 10 Business Days after its receipt of the Master Servicer's or the Special Servicer's request for such approval), such insurance is not available at commercially reasonable rates and, as determined by the Master Servicer or the Special Servicer following due inquiry conducted in a manner consistent with the Servicing Standard, the subject hazards are not 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 the then current market rates); or (d) the Trustee does not have an insurable interest in the related Mortgaged Property or REO Property. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand 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 (other than a Loan Combination), or in the related Loan Combination Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of a Loan Combination, 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) use reasonable efforts to monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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) 10 highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust Fund or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the TrustTrust Fund (and, if a Loan Combination satisfies clause (i) and/or clause (ii), the Special Servicer shall also inform the related Non-Trust Noteholder(s) as to such conclusion). During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) 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) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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)) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 LoanLoan 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 applicable, and, if available, can be obtained at commercially reasonable rates, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyCertificateholder)) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , 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 shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer with (with respect to unless a Specially Serviced LoanControl Event has occurred and is continuing) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination EventEvent with Directing Certificateholder consent) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) determines that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C13), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C13)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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, andshall 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 provided further that, if availableand to the extent that a Mortgage so permits, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer related Mortgagor shall be entitled required to rely on obtain the required insurance consultants coverage from Qualified Insurers that, in each case, 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]" (at or an equivalent rating), from each of the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesRating Agencies. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of at a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interestminimum, 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) 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 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, 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 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 (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion Loanor shall name the Trustee as the insured, other than REO Properties) or with loss payable 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by , in the Master Servicer in maintaining any such Insurance Policies case of amounts received in respect of Mortgage Loans (including any related Serviced Companion Loan) (other than REO Properties and other than any Non-Serviced a Mortgage Loan) (i) if , or in the Mortgagor defaults on its obligation REO Account, subject 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 Collection 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 withdrawal pursuant to Section 3.14(c) or3.16(c), 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide case of amounts received in respect of an explanation as to its reasons for failing to purchase such insurance and (C) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedREO 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) The Master Servicer (with respect to the Mortgage Loans (including the Serviced Whole Loans and other than a Non-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 LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and or the Special Servicer (with respect to REO Properties other than any Non-Serviced the JQH Hotel Portfolio Mortgaged PropertiesProperty after the JQH Hotel Portfolio Servicing Transfer Event) shall maintainuse efforts consistent with the Servicing Standards to cause the Mortgagor to maintain (other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event), to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be)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 a Non-Serviced the JQH Hotel Portfolio Mortgage Loan) and any related Serviced Companion LoanLoan after the JQH Hotel Portfolio Servicing Transfer Event) or the Special Servicer (with respect to REO Properties other than a Non-Serviced the JQH Hotel Portfolio Mortgaged PropertyProperty after the JQH Hotel Portfolio Servicing Transfer Event) shall maintain all insurance coverage as is required under the related Mortgage, 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan , as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made determined by the Master Servicer (with respect to the Mortgage Loans (and Serviced Whole Loans and other than a Non-Serviced the JQH Hotel Portfolio Mortgage LoanLoan after the JQH Hotel Portfolio Servicing Transfer Event) and any related Serviced Companion Loan) (or in the Special Servicer (case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties other than any Non-Serviced the JQH Hotel Portfolio Mortgaged PropertyProperty 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 as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 Master Servicer or, with respect to REO Property, or the Special Servicer, as applicablethe case may be, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard 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 shall or the Special Servicer, as the case may be, will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The rates as determined by the Master Servicer and the 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 ratesServicer. Subject to Section 3.15(a3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced the JQH Hotel Portfolio Mortgaged PropertyProperty after the JQH Hotel Portfolio Servicing Transfer Event) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is not available at commercially reasonable rates or rates; provided 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 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 (other than any Non-Serviced Mortgage Loan), including any related Serviced and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 10 days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a)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 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 Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection applicable 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 and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to CertificateholdersCertificateholders and Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(c3.16(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 Collection Account)Advance. The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced Whole a Mortgage Loan and its related Companion Loan as if it each pair 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates". Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced the JQH Hotel Portfolio Mortgage LoanLoan after the JQH Hotel Portfolio Servicing Transfer Event) and any related Serviced or the Companion Loan 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 (including any related Serviced or the Companion Loan) Loans reasonably requires from time to time in order to protect its interests, the Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 upon on the Master Servicer’s 's compliance with the immediately preceding clauses (A) and (B) above)) that any Mortgagor under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants maintained in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions existaccordance with this Section 3.07(a). Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the Master Servicer's determination of the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may beapplicable). 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any , as determined ((i) prior to the occurrence and continuance of any Control Event or (ii) other than with respect to the Excluded Loan, any determination that such insurance coverage is not available or not available at commercially reasonable rates shall to be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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)) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Special Servicer with ((i) unless a Control Event has occurred and is continuing or (ii) other than with respect to a Non-Specially Serviced the Excluded Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder ((i) prior to the occurrence and continuance of a Control Termination EventEvent or (ii) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an the Excluded Loan as to such partyLoan, with the consent of the Directing Certificateholder) determines that such insurance is 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 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shallwill 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Special Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)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 (or its failure 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.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2014-C20)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The applicable Master Servicer (with respect to the Mortgage Loans (including the Serviced Whole Loans and other than a the Non-Serviced Mortgage LoanLoans) it is obligated to service hereunder and any the related Specially Serviced Companion LoanMortgage 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 use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (other than with respect to a the Non-Serviced Mortgage LoanLoans), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be)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 a the Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than a Non-Serviced 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, Mortgage Loan but only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that , as determined by such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans (and Serviced Whole Loans and other than a the Non-Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) (or in the Special Servicer (case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties other than any Non-Serviced 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 as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, with respect to REO Property, or the Special Servicer, as applicablethe case may be, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard 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 such Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and rates as determined by the Special Servicer, provided that such Master Servicer shall be entitled to conclusively rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratessuch determination. Subject to Section 3.15(a3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced 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 documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is not available at commercially reasonable rates or rates, provided that the Trustee does not have an insurable interest, in which case the such Master Servicer shall be entitled to conclusively rely on the Special Servicer’s such determination. All Insurance Policies that insure against loss to the property and are maintained by the Master Servicer 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 (other than any Non-Serviced Mortgage Loan), including any related Serviced and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 10 days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a)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 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 Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the applicable Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the applicable 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 Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to CertificateholdersCertificateholders and Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(c3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable 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 Collection Account)Advance. The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced Whole a Mortgage Loan and its related Companion Loan as if it each pair 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates". Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a the Non-Serviced Mortgage LoanLoans) and any related Serviced or the Companion Loan 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 (including any related Serviced or the Companion Loan) Loans reasonably requires from time to time in order to protect its interests, the applicable Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 upon on the applicable Master Servicer’s 's compliance with the immediately preceding clauses (A) and (B) above)) that any Mortgagor under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by the Special Servicer) shall notify the applicable Master Servicer and the such Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and the Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants maintained in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions existaccordance with this Section 3.07(a). Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and the 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.

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) The applicable Master Servicer (with respect to the Mortgage Loans (including the Serviced Whole Loans and other than a the Non-Serviced Mortgage LoanLoans) it is obligated to service hereunder and any the related Specially Serviced Companion LoanMortgage 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 use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (other than with respect to a the Non-Serviced Mortgage LoanLoans), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be)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 a the Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than a Non-Serviced 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, Mortgage Loan but only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that , as determined by such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans (and Serviced Whole Loans and other than a the Non-Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) (or in the Special Servicer (case of insurance against property damage resulting from terrorist or similar acts or insurance with respect to REO Properties other than any Non-Serviced 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 as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, with respect to REO Property, or the Special Servicer, as applicablethe case may be, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard 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 such Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and rates as determined by the Special Servicer, provided that such Master Servicer shall be entitled to conclusively rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratessuch determination. Subject to Section 3.15(a3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced 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 documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is not available at commercially reasonable rates or rates, provided that the Trustee does not have an insurable interest, in which case the such Master Servicer shall be entitled to conclusively rely on the Special Servicer’s such determination. All Insurance Policies that insure against loss to the property and are maintained by the Master Servicer 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 (other than any Non-Serviced Mortgage Loan), including any related Serviced and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 10 days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a)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 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 Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the applicable Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the applicable 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 Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to CertificateholdersCertificateholders and Companion Holders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(c3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable 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 Collection Account)Advance. The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced Whole a Mortgage Loan and its related Companion Loan as if it each pair 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates". Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a the Non-Serviced Mortgage LoanLoans) and any related Serviced or the Companion Loan Loans that either (x) require the Mortgagor to maintain “all risk” 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 (including any related Serviced or the Companion Loan) Loans reasonably requires from time to time in order to protect its interests, the applicable Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 upon on the applicable Master Servicer’s 's compliance with the immediately preceding clauses (A) and (B) above)) that any Mortgagor under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by the Special Servicer) shall notify the applicable Master Servicer and the such Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and the Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants maintained in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions existaccordance with this Section 3.07(a). Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and the 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) or shall, consistent with the Special Servicer (with respect Servicing Standard, cause to REO Properties other than a Non-Serviced be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts 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 exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers that have a "claims paying ability" rating of at least "A" from Standard to cause & 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 Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent expense of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesMajority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent 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 qualification, downgrading or withdrawal of the Directing Certificateholder (prior ratings then assigned to the occurrence and continuance of a Control Termination Event) and after consultation Certificates, as evidenced in writing by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Rating Agencies. All such insurance is policies shall contain (if they insure against loss to property and do not available at commercially reasonable rates or that the Trustee does not have relate to 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 (iREO Property) 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 LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (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 each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-and Companion Loans that are not Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Loans) shall, consistent with the Servicing Standard, cause to be maintained for each Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; PROVIDED that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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, andshall exercise such discretion in a manner consistent with the Servicing Standard; and PROVIDED, FURTHER, that, if availableand to the extent that a Mortgage so permits, can 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 -105- by Xxxxx'x, and if not rated by Xxxxx'x, then at least "A:VIII" or better from A.M. Best Company) and "A" from Fitch (if then rated by Fitch, and if not then rated by Fitch, then at least "A:VIII" from A.M. Best Company) (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 Certificateholder may request that earthquake insurance, to the extent such insurance may reasonably be obtained at commercially reasonable ratesand provided the related loan documents and applicable law give the mortgagee the right to request such insurance coverage, be secured for one or more Mortgaged Properties by the related Mortgagor. The Master Servicer and related Companion Loan Noteholder may request that earthquake insurance, to the Special Servicer shall extent such insurance may reasonably be entitled to rely on insurance consultants (obtained, be secured for the Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown Square Mortgaged Property at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of such Companion Loan Noteholder. Subject to Section 3.15(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 paragraphSECTION 3.17(a), the Special Servicer Servicer, in accordance with the Servicing Standard, shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent 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 the Directing Certificateholder at xxxxx "X0" from Xxxxx'x and "A" from Fitch (prior to the occurrence if then rated by Fitch, and continuance of a Control Termination Event) and after consultation if not then rated by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(aFitch, then an equivalent rating by at least one nationally recognized statistical rating agency besides Xxxxx'x) (or, in each the case other than with respect to a Mortgage Loan that is of either Rating Agency, such lower rating as will not result in an Excluded Loan Adverse Rating Event, as to evidenced in writing by such party) that Rating Agency). All such insurance is policies shall contain (if they insure against loss to property and do not available at commercially reasonable rates or that the Trustee does not have relate to 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 (iREO Property) 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-and Companion Loans, including Specially Serviced Mortgage LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf 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 nonpaymentTrustee; and, in which case each case, such policy insurance 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 PoliciesInsurer. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection Accountapplicable Custodial Account in accordance with SECTION 3.04(a) or 3.04A(a), subject to withdrawal pursuant to Section 3.05(aas the case may be, in the case of amounts received in respect of a Mortgage Loan or Companion 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 costs cost incurred by the Master Servicer or the Special Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans insurance (including any related Serviced earthquake insurance maintained at the request of a Controlling Class Certificateholder or a Companion Loan) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation 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 Collection Account) and will be charged to the related Mortgagor and (iiLoan Noteholder) shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Loan, Companion Loan (if any)or REO Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan loan so permit. Any cost incurred , but shall be recoverable 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedServicing Advance.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Com Mort Pas THR Certs Ser 2000-C3)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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, use reasonable efforts to the extent required by the terms of require the related Mortgage Loan documentsMortgagor to maintain or, all insurance coverage as is required under consistent with the related Mortgage Loan documents except Servicing Standard and to the extent that the failure of Trust has an insurable interest and the related Mortgagor to do so is an Acceptable Insurance Default (and subject coverage, except as provided in the next sentence below with respect to the Master Servicer insurance against terrorist or the Special Servicersimilar acts, as the case may be). If the Mortgagor does not so maintain such insurance coverageis available at commercially reasonable rates, subject otherwise cause 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided, further, that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 rates3.03. The Master Servicer and the Special Servicer shall Majority Controlling Class Certificateholder may request that earthquake insurance be entitled to rely on insurance consultants (secured for one or more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Controlling Class Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Serviced Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 (xA) the full replacement cost of the improvements securing on the subject Mortgaged Property or the REO Property, as applicable, and or (yB) the outstanding principal balance owing on the related Mortgage Serviced 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, ; (ivv) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Serviced 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 shall 115 include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Serviced Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in in, as applicable, the Collection Account, subject to withdrawal pursuant to Section 3.05(a), or any related Loan Combination Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of a Serviced 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or the related Serviced Companion Loan so permit. Any cost incurred by Notwithstanding 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 foregoing, subject to Section 3.14(c) or6.11 and Section 6.12, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer in each case 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 Collection 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 contraryapplicable, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, and will shall not cause a Mortgagor to 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 (other than a Non-Serviced 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 failure of the related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property obtain, fire and extended perils casualty insurance (which does not contain any carve-out for terrorist or similar acts, if 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 interestsonly if, the Master Servicer shallSpecial Servicer, consistent in consultation with the Servicing StandardControlling Class Representative, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines determined in accordance with the Servicing Standard that either (i) such failure insurance is not an Acceptable Insurance Defaultavailable at any rate or (ii) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the subject Mortgaged Property and located in or around the region in which the 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 (with regard shall not be required to such determination made by the Special Servicer) shall notify the Master Servicer do so; and the Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreprovided, the Master Servicer or the Special Servicerfurther, as applicablethat, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. The Special Servicer shall promptly notify the Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Specially Serviced Mortgage Loan), Assets) and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesAssets) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Obligor to maintain for each Mortgaged Property all insurance coverage as is required under the related terms of such Lease or Mortgage Loan documents except Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Obligor is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard, 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 availableand to the extent that a Lease or Mortgage Loan so permits, can the related Obligor shall be obtained required to obtain the required insurance coverage from Qualified Insurers that 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 place as of the related Series Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Property Manager has determined (in its reasonable judgment in accordance with the Servicing Standard) that either (i) such insurance is not available at a commercially reasonable rates. The Master Servicer rate and the Special Servicer shall be entitled to rely on insurance consultants (subject hazards are at the applicable servicer’s expensetime not commonly insured against by prudent owners of properties similar to the Mortgaged Property located in or around the region in which such Mortgaged Property is located or (ii) in determining whether any such insurance is not available at commercially reasonable ratesany rate. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor Obligor under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided, that is an Excluded Loan as to such party) that all such insurance is 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 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 Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer 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 (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in applicable Issuer and 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 applicableIndenture Trustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 1 contract

Samples: Management and Servicing Agreement (Spirit Finance Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to or the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) Special Servicer, as applicable, shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan documents, (other than the Somerset Collection Mortgage Loan) all insurance coverage as is required under the related Mortgage Loan documents 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 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 (and except as provided in Default; provided, however, that if any Mortgage permits the next sentence with respect 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). If the Mortgagor does not so maintain applicable, shall impose such insurance coveragerequirements as are consistent with the Servicing Standards, subject to its recoverability determination provided that, with respect to any required Servicing Advancethe immediately preceding proviso, 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 Servicer, as applicable, will be obligated to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as against property damage resulting from terrorist or similar acts unless the Mortgagor's failure is required under the related Mortgage, but 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 applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 determinationLoan. 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 or (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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsLoan) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 stated principal balance of the Mortgage Loans then included in the Trust. During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: 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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts shall, consistent with the Servicing Standard Standard, use its best efforts to cause the Mortgagor related Mortgator to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). If the if such Mortgagor does not so maintain, shall itself maintain such insurance coverage, (subject to its recoverability determination with respect to any required the provisions of this Agreement concerning Nonrecoverable Servicing Advance, the Master Servicer (with respect Advances) to the Mortgage Loans extent the Trustee as mortgagee has an insurable interest and to the extent available at commercially reasonable rates, cause to be maintained for each Mortgaged Property (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; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided further that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the 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; provided, however, if the related Mortgage Loan documents require a higher rating, then such higher rating shall be required. The Majority Subordinate Certificateholder may request that earthquake insurance is available to be secured by the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained for one or more Mortgaged Properties at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent expense of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Majority Subordinate Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant . Subject to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party3.17(b), other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the Special Servicer shall also cause to be entitled maintained, to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is extent available at commercially reasonable rates. Subject to Section 3.15(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 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 insurance, shall have a claims paying ability rating of at least "A" from Standard & Poor's and DCR (or Standard & Poor's and a comparable rating from one other nationally recognized statistical rating agency, if such insurer is not rated by DCR) 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; provided, however, if the related Mortgage Loan documents unless require a higher rating, then such higher rating shall be required. In the case of any insurance otherwise required to be maintained pursuant to this section that is not being so maintained because the Master Servicer or the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicer, as applicable, has deemed that is an Excluded Loan as to such party) that such insurance it is not available at commercially reasonable rates or that the Trustee does not have an insurable interestrates, 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, as applicable, shall deliver an Officer's Certificate to the Trustee detailing the steps that the Master Servicer or the Special Servicer, as applicable, took in seeking such insurance and the factors which led to its determination that such insurance is not so available. All such insurance policies shall contain (iif they insure against loss to property and do not relate to an REO Property) 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 LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (Trust Fund; 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 each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by Costs to the Special Master Servicer in of maintaining any such Insurance Policies with respect insurance policies pursuant to REO Properties this Section 3.07 shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced paid by the Master Servicer as a Servicing Advance (so long as such Advance would not and shall be a Nonrecoverable Advance reimbursable to the Master Servicer with interest at the applicable Reimbursement Rate, and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out costs to the Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to 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, paid 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, consistent with the Servicing Standard, (A) monitor reimbursed in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a3.17(b), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 1998-C2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Serviced Mortgage Loan), Specially Managed Units) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertiesSpecially Managed Units) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Tenant or Mortgage Loan documents, Borrower to maintain for each Property all insurance coverage as is required under the terms of the related Lease or Mortgage Loan documents except Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease or Mortgage Loan permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant or Mortgage Loan Borrower is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner to cause such Tenant or Mortgage Loan Borrower to meet the Insurance Requirements; and provided, further, that, if availableand to the extent that a Lease or Mortgage Loan so permits, can the related Tenant or Mortgage Loan Borrower shall be obtained required to obtain the required insurance coverage from Qualified Insurers that have a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide. If such Tenant or Mortgage Loan Borrower does not maintain the required insurance or, with respect to any Environmental Policy in place as of the Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Administrative Agent has determined (in its reasonable judgment) that either (i) such insurance is not available at a commercially reasonable ratesrate and the subject hazards are at the time not commonly insured against by prudent owners of properties similar to the Property located in or around the region in which such Property is located or (ii) such insurance is not available at any rate. The Master Servicer and the Special Servicer shall also use reasonable efforts to cause to 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 3.15(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 maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less property insurance coverage than was previously required of the Mortgagor Tenant or Mortgage Loan Borrower under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of Servicing Standard, insurance meeting the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Insurance Requirements; provided, that is an Excluded Loan as to such party) that all such insurance is 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 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 Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer 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 (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in applicable Borrower and 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 applicableAdministrative Agent, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsLease) shall be deposited in the Collection 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 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: Property Management Agreement (STORE CAPITAL Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-and the Specially Serviced Mortgage Loans and the Bank of America Plaza Whole Loan) and any related Serviced Companion Loanor the Special Servicer (with respect to REO Properties) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required 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 the Special Servicer, as the case may be)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 (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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 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 LoanStandards, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use reasonable efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)Certificateholder) 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. The Master Servicer and the 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 3.15(a3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is 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 determinationrates. 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 and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection 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 and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection Account)Advance. The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced the Bank of America Plaza 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 (other than a Non-Serviced 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 or the Bank of America Plaza Whole 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) or the Bank of America Plaza Whole Loan reasonably requires from time to time in order to protect its interests, the Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard shall be required to such determination made by the Special Servicer) shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain such insurance to be maintained. The Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions existinsurance. Furthermore, the Master Special Servicer or the Special Master Servicer, as applicable, shall promptly deliver inform the Rating Agencies as to 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 Master Special Servicer or the Special Servicer Master Servicer, as applicable, is evaluating the availability of such insurance insurance, none of the Master Servicer, the Special Servicer or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc17)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The In the case of each Serviced Loan, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable efforts consistent with the Servicing Standard to cause each Mortgagor to maintain, and, if the Mortgagor to maintain (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 does not so maintain, the Master Servicer will itself cause to the extent required by the terms of the related Mortgage Loan documentsbe maintained, for each Mortgaged Property (including each Mortgaged Property relating to any Specially Serviced Loan) all insurance coverage as is required required, subject to applicable law, under the related Mortgage Loan documents except loan documents; provided that, if and to the extent that any such loan documents permit the failure holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advancemaintain, the Master Servicer (with respect to the Mortgage Loans (other than shall exercise such discretion in 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 manner consistent with the Servicing Standard taking 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 the insurance in place at the closing of the Mortgage Loan, provided thatloan origination, with respect a view towards requiring insurance comparable to the immediately preceding provisothat 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 obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor required to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available coverage upon the related Mortgagor's failure to do so only to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any extent that such insurance is available at commercially reasonable ratesrates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than with respect to any REO Property related to a Non-Serviced Mortgaged PropertyLoan) no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related Mortgage Loan loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided that is an Excluded Loan as to such party) that all such insurance is not available at commercially reasonable rates required to be maintained by Master Servicer or that the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on 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 Special Servicer’s determinationhighest 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 ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 the Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion or shall name the Trustee (and in the case of a Whole Loan, other than REO Propertiesthe related Companion Loan Holder) or 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), (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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in into the Collection 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 Serviced 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 costs cost incurred by the Master Servicer or Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by ; provided, however, this sentence shall not limit the rights of the Master Servicer or Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense on behalf of the Trust payable out or, if a Whole Loan is involved, on behalf of the related REO Account pursuant Companion Loan Holder, to Section 3.14(c) or, if enforce any obligations of the amount on deposit therein is insufficient therefor, advanced by related Mortgagor under such Serviced Loan. Costs to 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 or Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision be paid by and reimbursable to the contraryMaster 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 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 (x) 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 will not be required has determined (in consultation with the Special Servicer and the Directing Certificateholder) that the loan documents permit the lender 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 (other than a Non-Serviced 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 insurance policies covering some or all risk” property insurance the risks contained in the Additional Exclusions (and do not expressly permit an exclusion for terrorism) the covered risks required to be covered or (y) contain provisions generally requiring that the applicable Mortgagor lender has the discretion to maintain insurance in types and against such risks require to be covered being referred to as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests"Covered Risks"), the Master Servicer shall, consistent with the Servicing Standard, (A) monitor shall use reasonable efforts in accordance with the Servicing Standard whether to determine whether, upon renewal of the Mortgagor's property or casualty insurance policies for (including any all risk insurance policy), any of the related Mortgaged Property contain Additional Exclusions; provided that Covered Risks are excluded from coverage. If any of the Covered Risks are determined by the Master Servicer to be excluded from coverage, the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either (i) purchase insurance against acceptable to the risks specified Master Servicer in accordance with the Additional Exclusions Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide an a written explanation as to its reasons for failing to purchase such insurance and (C) if insurance. Notwithstanding the related Mortgage Loan is a Specially Serviced Loanforegoing, notify with the written consent of 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 in accordance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by Servicing Standard the Master Servicer pursuant may waive the requirement to clause (B) above. If procure insurance covering any of the Covered Risks if the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that (1) insurance covering any such failure Covered Risks is not an Acceptable Insurance Defaultavailable at a commercially reasonable price, the Special Servicer or (with regard 2) based on information reasonably available to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicerafter due inquiry, as applicable, shall promptly deliver any such conclusions in writing Covered Risks are at that time not commonly insured against for properties similar to the 17g-5 Information Provider for posting to Mortgaged Property and located in or around the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of region in which the ten (10) highest outstanding Stated Principal Balances of all of Mortgaged Property is located unless the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans Serviced Loan is greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan is greater than $20,000,000, then included 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 Trustsecond 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. During 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 or Servicer, the Special Servicer is evaluating the availability of such insurance or waiting for a response from and/or the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall be liable for any loss related to its failure to require the a Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. If the Master Servicer will not itself requires the Mortgagor to maintain such insurance or cause 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 maintainedthe 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 2007-2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (and Companion Loans other than a Non-Specially Serviced Mortgage LoanMortgaged Loans to the extent that the Trust Fund has an insurable interest) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to Specially Serviced Mortgage Loans and REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided, further, that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless such insurance was required at similar acts, if and only if the time of origination of Special Servicer, in consultation with the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates. Notwithstanding the foregoingControlling Class Representative, and, with respect to each Co-Lender Loan, in consultation with the Mortgage Loans related Companion Holder if required under the applicable Intercreditor Agreement (other than a Non-Serviced Mortgage or with respect to the 175 West Jackson Whole Loan) and any related Serviced Companion Loan , the 175 West Jackson Representative), hax xxxxxxxxxx xx accordance with the Servicxxx Xxxndard that either (xa) require the Mortgagor to maintain “all risk” property such insurance (and do is not expressly permit an exclusion for terrorism) available at any rate or (yb) contain provisions generally requiring such insurance is not available at commercially reasonably rates and that such hazards are not at the applicable Mortgagor time commonly insured against for properties similar to maintain insurance the Mortgaged Property and located in types and against or around the region in which such risks as Mortgaged Property is located; provided, further, that upon the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, Special Servicer's determination 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, notify exigent circumstances do not allow 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 consult with the immediately preceding clauses Controlling Class Representative or Companion Holder, if applicable (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (or, with respect to a Non-Specially Serviced the 175 West Jackson Whole Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by the Special Servicer) 175 West Jackson Representative), thx Xxxxxxx Xxxxxxer shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to not be maintained. The Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermorerequired tx xx xx; provided, the Master Servicer or the Special Servicerfurther that, as applicable, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure; provided that the Master Servicer has given prompt notice to the Special Servicer of its determination that it will not itself maintain be successful in its efforts to cause the Mortgagor to obtain such insurance or cause insurance, along with its determination, and any information in its possession, regarding the availability and cost of such insurance to be maintainedinsurance. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C15)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Serviced Mortgage Loan), Specially Managed Units) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertiesSpecially Managed Units) shall maintain, will use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Tenant to maintain for each Property all insurance coverage as is required under the terms of the related Mortgage Loan documents except Lease (including for the avoidance of doubt, any environmental insurance policy); provided, that if and to the extent that any such Lease permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andwill exercise such discretion in a manner consistent with the Servicing Standard. If such Tenant does not maintain the required insurance or, if availablewith respect to any environmental insurance policy in place as of the related Series Closing Date or Transfer Date, can the Property Manager or Special Servicer will itself cause such insurance to be obtained maintained with insurance companies or security or bonding companies qualified to write the related property insurance policies in the relevant jurisdiction that have a claims-paying ability rated at commercially reasonable rates. The Master Servicer and least “A:VIII” by A.M. Best’s Key Rating Guide; provided, that neither the Property Manager nor the Special Servicer shall will be entitled required 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 3.15(a) and the costs of maintain such insurance being reimbursed if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an insurable interest or paid to the Property Manager or the Special Servicer Servicer, as provided applicable, has determined, 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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines its reasonable judgment in accordance with the consent of the Directing Certificateholder Servicing Standard, that either (prior to the occurrence and continuance of a Control Termination Eventi) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at a commercially reasonable rates rate and the subject hazards are at the time not commonly insured against by prudent owners of properties similar to the Property located in or that around the Trustee does not have an insurable interest, region in which case the Master Servicer shall be entitled to conclusively rely on the Special Servicer’s determinationsuch Property is located or (ii) such insurance is F at any rate. All Insurance Policies maintained The cost of any such insurance coverage obtained by the Master Servicer Property Manager or the Special Servicer shall will be a Property Protection Advance to be paid by the Issuer Manager, and such insurance coverage need not be obtained if the related Property Protection Advance would constitute a Nonrecoverable Advance. All insurance policies maintained by the Property Manager or the Special Servicer pursuant to the immediately preceding sentence will contain (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in Issuer and 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 applicableIndenture Trustee, 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), will be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall will be deposited distributed in the Collection Account, subject to withdrawal pursuant to manner set forth under 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 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintained22.

Appears in 1 contract

Samples: Property Management Agreement (Cim Real Estate Finance Trust, Inc.)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (Servicer, with respect to each of the Mortgage Loans (other than a Non-Loans, including Specially Serviced Mortgage Loan) Loans, and any related Serviced Companion Loan) the Special Servicer, with respect to REO Properties, shall use its efforts reasonable efforts, consistent with the Servicing Standard Standard, to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). If if the Mortgagor does not so maintain, shall itself 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 for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided, further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under the terms of the Mortgage Loans (other than a Non-Serviced or the Mortgage Loan) and any related Serviced Companion Loan) or Loan documents, the Special Servicer (with respect to REO may require that earthquake insurance be secured for one or more Mortgaged Properties other than any Non-Serviced Mortgaged Property) except to at the extent that the failure expense of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer Trust Fund (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, including the Special Servicer, as applicable, shall impose or maintain, as applicable, 's costs and expenses incurred in obtaining such insurance requirements as are consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyinsurance)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent as of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Closing Date; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 (and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)) (in the case of insurance maintained in respect of Mortgage Loans Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Master Servicer or the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any rate; (b) such insurance is not available from a Qualified Insurer (provided that the Master Servicer or the Special Servicer, as applicable, shall obtain such insurance from the next highest rated insurer offering such insurance at commercially reasonable rates); (c) subject to the prior approval of the Controlling Class Representative (which approval is deemed granted if not denied within 10 Business Days after its receipt of the Master Servicer's or the Special Servicer's request for such approval), such insurance is not available at commercially reasonable rates and, as determined by the Master Servicer or the Special Servicer following due inquiry conducted in a manner consistent with the Servicing Standard, the subject hazards are not 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 the then current market rates); or (d) the Trustee does not have an insurable interest in the related Mortgaged Property or REO Property. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand 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 (other than a Loan Combination), or in the related Loan Combination Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of a Loan Combination, 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) use reasonable efforts to monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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) 10 highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust Fund or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the TrustTrust Fund (and, if a Loan Combination satisfies clause (i) and/or clause (ii), the Special Servicer shall also inform the related Non-Trust Noteholder(s) as to such conclusion). During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The In the case of each Serviced Loan, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable efforts consistent with the Servicing Standard to cause each Mortgagor to maintain, and, if the Mortgagor to maintain (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 does not so maintain, the Master Servicer will itself cause to the extent required by the terms of the related Mortgage Loan documentsbe maintained, for each Mortgaged Property (including each Mortgaged Property relating to any Specially Serviced Loan) all insurance coverage as is required required, subject to applicable law, under the related Mortgage Loan documents except loan documents; provided that, if and to the extent that any such loan documents permit the failure holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advancemaintain, the Master Servicer (with respect to the Mortgage Loans (other than shall exercise such discretion in 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 manner consistent with the Servicing Standard taking 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 the insurance in place at the closing of the Mortgage Loan, provided thatloan origination, with respect a view towards requiring insurance comparable to the immediately preceding provisothat 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 obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor required to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available coverage upon the related Mortgagor's failure to do so only to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any extent that such insurance is available at commercially reasonable ratesrates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than with respect to any REO Property related to a Non-Serviced Mortgaged PropertyLoan) no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related Mortgage Loan loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided that is an Excluded Loan as to such party) that all such insurance is not available at commercially reasonable rates required to be maintained by Master Servicer or that the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on 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 Special Servicer’s determinationhighest 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 ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 the Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any or shall name the Trustee (and in the case of a Whole Loan the related Serviced Companion LoanLoan Holder) as the insured, other than REO Properties) or 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), (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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in into the Collection 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 costs cost incurred by the Master Servicer or Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by ; provided, however, this sentence shall not limit the rights of the Master Servicer or Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense on behalf of the Trust payable out or, if a Whole Loan is involved, on behalf of the related REO Account pursuant Companion Loan Holder, to Section 3.14(c) or, if enforce any obligations of the amount on deposit therein is insufficient therefor, advanced by related Mortgagor under such Serviced Loan. Costs to 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 or Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision be paid by and reimbursable to the contraryMaster 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 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 (x) 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 will not be required has determined that the loan documents permit the lender 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 (other than a Non-Serviced 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 insurance policies covering some or all risk” property insurance the risks contained in the Additional Exclusions (and do not expressly permit an exclusion for terrorism) the covered risks required to be covered or (y) contain provisions generally requiring that the applicable Mortgagor lender has the discretion to maintain insurance in types and against such risks require to be covered being referred to as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests"Covered Risks"), the Master Servicer shall, consistent with the Servicing Standard, (A) monitor shall use reasonable efforts in accordance with the Servicing Standard whether to determine whether, upon renewal of the Mortgagor's property or casualty insurance policies for (including any all risk insurance policy), any of the related Mortgaged Property contain Additional Exclusions; provided that Covered Risks are excluded from coverage. If any of the Covered Risks are determined by the Master Servicer to be excluded from coverage, the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either (i) purchase insurance against acceptable to the risks specified Master Servicer in accordance with the Additional Exclusions Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide an a written explanation as to its reasons for failing to purchase such insurance and (C) if insurance. Notwithstanding the related Mortgage Loan is a Specially Serviced Loanforegoing, notify with the written consent of 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 in accordance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by Servicing Standard the Master Servicer pursuant may waive the requirement to clause (B) above. If procure insurance covering any of the Covered Risks if the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that (1) insurance covering any such failure Covered Risks is not an Acceptable Insurance Defaultavailable at a commercially reasonable price, the Special Servicer or (with regard 2) based on information reasonably available to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicerafter due inquiry, as applicable, shall promptly deliver any such conclusions in writing Covered Risks are at that time not commonly insured against for properties similar to the 17g-5 Information Provider for posting to Mortgaged Property and located in or around the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of region in which the ten (10) highest outstanding Stated Principal Balances of all of Mortgaged Property is located unless the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans Serviced Loan is greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan is greater than $20,000,000, then included 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 Trustsecond 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. During 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 or Servicer, the Special Servicer is evaluating the availability of such insurance or waiting for a response from and/or the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall be liable for any loss related to its failure to require the a Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. If the Master Servicer will not itself requires the Mortgagor to maintain such insurance or cause 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 maintainedthe 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 2007-5)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Serviced Mortgage Loan), Specially Managed Units) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertiesSpecially Managed Units) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Tenant or Borrower to maintain for each Property all insurance coverage as is required under the terms of the related Lease or Mortgage Loan documents except Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease or Mortgage Loan permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant or Borrower is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard, 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 availableand to the extent that a Lease or Mortgage Loan so permits, can the related Tenant or Borrower shall be obtained required to obtain the required insurance coverage from Qualified Insurers that have a claims-paying ability rated at least “A:VIII” by X.X. Xxxx’s Key Rating Guide. If such Tenant or Borrower does not maintain the required insurance or, with respect to any Environmental Policy in place as of the related Series Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Property Manager has determined (in its reasonable judgment in accordance with the Servicing Standard) that either (i) such insurance is not available at a commercially reasonable ratesrate and the subject hazards are at the time not commonly insured against by prudent owners of properties similar to the Property located in or around the region in which such Property is located or (ii) such insurance is not available at any rate. The Master Servicer and the Special Servicer shall also use reasonable efforts to cause to 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 3.15(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 maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less property insurance coverage than was previously required of the Mortgagor Tenant or Borrower under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided, that is an Excluded Loan as to such party) that all such insurance is 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 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 Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer 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 (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in applicable Issuer and 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 applicableIndenture Trustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 1 contract

Samples: Management and Servicing Agreement (Store Capital LLC)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 Property 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer shall be obligated to use efforts consistent with (at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or direction of the Special Servicer (with respect to in the case of a Specially Serviced Loan) with shall (to the consent of the Directing Certificateholder extent available at commercially reasonable terms) obtain such insurance (unless which may be through a Control Termination Event has occurredmaster or single interest policy) and after consultation 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 Special Master Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (3.05(a). If at any time a Mortgaged Property is located in each case, other than with respect to any Excluded Loan as to such party)) and only an area identified in the event Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Trustee 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 therein 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 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. If (i) the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance is available (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 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 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 Special Servicer pursuant to Section 3.05(a); provided that the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the or Special Servicer shall not be entitled required to rely on insurance consultants (at the applicable servicer’s expense) in determining whether incur any insurance is available at commercially reasonable ratessuch cost if such Advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Propertyto the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines or as is consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Servicing Standard. All such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the Master Servicer policies 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 Mortgaged 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 on behalf 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 applicableTrustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsdocuments and the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid outstanding principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 , but shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced recoverable 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a3.05(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (and the Companion Loan other than a Non-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan documents, Mortgaged Property 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanterms); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Loan) shall be obligated (to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (extent available at commercially reasonable terms as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the Special Servicer which shall be entitled to rely on an opinion of counsel or insurance consultants in making such determination) obtain such insurance (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(awhich may be through a master or single interest policy) 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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, deductible relating to such insurance and in any event, the amount necessary to avoid the operation out of any co-insurance provisions, (iv) include a replacement pocket 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master Servicer in maintaining any obtaining advice of counsel or insurance consultants) of such Insurance Policies insurance (or in respect the case of Mortgage Loans a master or single interest policy, the incremental cost (including any related Serviced Companion Loandeductible relating to such insurance) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if of such insurance relating to the Mortgagor defaults on its obligation to do sospecific Mortgaged Property), 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased recoverable by the Master Servicer pursuant to clause (BSections 3.05(a) aboveand 3.05(b). If at any time a Mortgaged Property is located in an area identified in the Master Servicer (with respect to a Non-Specially Serviced Loan) Flood Hazard Boundary Map or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Flood Insurance Default, the Special Servicer (with regard to such determination made Rate Map issued by the Special Servicer) shall notify the Master Servicer and the Master Servicer shall use efforts consistent with the Servicing Standard to cause Federal Emergency Management Agency as having special flood hazards or it becomes located in such insurance to be maintained. The Master Servicer and the Special Servicer (at the expense area by virtue of the Trust) shall be entitled to rely on insurance consultants in making remapping conducted by such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.agency

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) The In the case of each Mortgage Loan, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable efforts consistent with the Servicing Standard to cause each Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master Servicer will itself cause to maintain be maintained, for each Mortgaged Property (other than with respect including each Mortgaged Property relating to a Non-any Specially Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required required, subject to applicable law, under the related Mortgage Loan documents except loan documents; provided that, if and to the extent that any such loan documents permit the failure holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advancemaintain, the Master Servicer (with respect to the Mortgage Loans (other than shall exercise such discretion in 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 manner consistent with the Servicing Standard taking 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 the insurance in place at the closing of the Mortgage Loan, provided thatloan origination, with respect a view towards requiring insurance comparable to the immediately preceding provisothat 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 obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor required to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available coverage upon the related Mortgagor's failure to do so only to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any extent that such insurance is available at commercially reasonable ratesrates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related Mortgage Loan loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided that is an Excluded Loan as to such party) that all such insurance is not available at commercially reasonable rates required to be maintained by Master Servicer or that the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on 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 Special Servicer’s determinationhighest 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 ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 the Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion Loanor shall name the Trustee) as the insured, other than REO Properties) or with loss payable 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in into the Collection 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 an REO Property. Any costs cost incurred by the Master Servicer or Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by ; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense on behalf of the Trust payable out to enforce any obligations of the related REO Account pursuant Mortgagor under such Mortgage Loan. Costs to Section 3.14(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 or Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to this Section 3.07 shall apply be paid by and reimbursable 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 maintainor the Special Servicer, and will not be in default for failing to obtainas the case may be, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan (other than as a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesServicing Advance. Notwithstanding the foregoing, if as of the Closing Date the loan documents specifically and expressly set forth terms requiring insurance coverage against terrorist or similar acts for a Mortgage Loan with respect 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 Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) 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 risk” property insurance the risks contained in the Additional Exclusions (and do not expressly permit an exclusion for terrorism) the covered risks required to be covered or (y) contain provisions generally requiring that the applicable Mortgagor lender has the discretion to maintain insurance in types and against such risks require to be covered being referred to as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests"Covered Risks"), the Master Servicer shall, consistent with the Servicing Standard, (A) monitor shall use reasonable efforts in accordance with the Servicing Standard whether to determine whether, upon renewal of the Mortgagor's property or casualty insurance policies for (including any all risk insurance policy), any of the related Mortgaged Property contain Additional Exclusions; provided that Covered Risks are excluded from coverage. If any of the Covered Risks are determined by the Master Servicer to be excluded from coverage, the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either (i) purchase insurance against acceptable to the risks specified Master Servicer in accordance with the Additional Exclusions Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide an a written explanation as to its reasons for failing to purchase such insurance and (C) if insurance. Notwithstanding the related Mortgage Loan is a Specially Serviced Loanforegoing, notify with the written consent of 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 in accordance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by Servicing Standard the Master Servicer pursuant may waive the requirement to clause (B) above. If procure insurance covering any of the Covered Risks if the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that (1) insurance covering any such failure Covered Risks is not an Acceptable Insurance Defaultavailable at a commercially reasonable price, the Special Servicer or (with regard 2) based on information reasonably available to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicerafter due inquiry, as applicable, shall promptly deliver any such conclusions in writing Covered Risks are at that time not commonly insured against for properties similar to the 17g-5 Information Provider for posting to Mortgaged Property and located in or around the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of region in which the ten (10) highest outstanding Stated Principal Balances of all of Mortgaged Property is located unless the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans Loan is greater than $[_________]. If the Stated Principal Balance of the Mortgage Loan is greater than $[_________], then included 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 Trustsecond 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. During 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 or Servicer, the Special Servicer is evaluating the availability of such insurance or waiting for a response from and/or the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall be liable for any loss related to its failure to require the a Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. If the Master Servicer will not itself requires the Mortgagor to maintain such insurance or cause 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 maintainedthe 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.

Appears in 1 contract

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

AutoNDA by SimpleDocs

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) or shall, consistent with the Special Servicer (with respect Servicing Standard, cause to REO Properties other than a Non-Serviced be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required to be maintained on such Mortgaged Propertymaintain, the Master Servicer orshall 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 exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers that 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, if such insurer is not rated by Moody's). In connection with fourteen Mortgage Loans (control numbers XXXX-000, 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 REO Propertywhich Mortgage Loans the related Mortgage Loan documents require or permit the related mortgagee to require that earthquake insurance be maintained, the Master Servicer or 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use reasonable efforts consistent with the Servicing Standard to cause require the related Mortgagor to maintain earthquake insurance as required or permitted by the Mortgage Loan documents. With respect to any other Mortgage Loan that requires or permits the related lender to require that earthquake insurance 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 itself maintainrequire that earthquake insurance be maintained or (ii) that the Master Servicer or Special Servicer, as applicable, has been unable to enforce the provisions of the preceding two sentences, the Majority Subordinate Certificateholder may request that earthquake insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined be secured by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 beapplicable, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the 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 ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent 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 rated by Moody's) or such lower rating as will not result in qualification, downgrading or withdrawal of the Directing Certificateholder (prior ratings then assigned to the occurrence and continuance of a Control Termination Event) and after consultation Certificates, as evidenced in writing by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Rating Agencies. All such insurance is policies shall contain (if they insure against loss to property and do not available at commercially reasonable rates or that the Trustee does not have relate to 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 (iREO Property) 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 LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (Trust Fund; 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 each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Specially Serviced Mortgage Loan), Assets) and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesAssets) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Obligor to maintain for each Mortgaged Property all insurance coverage as is required under the related terms of such Lease or Mortgage Loan documents except Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Obligor is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Properly Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard, 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 availableand to the extent that a Lease or Mortgage Loan so permits, can the related Obligor shall be obtained required to obtain the required insurance coverage from Qualified Insurers that 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 place as of the related Series Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Property Manager has determined (in its reasonable judgment in accordance with the Servicing Standard) that either (i) such insurance is not available at a commercially reasonable rates. The Master Servicer rate and the Special Servicer shall be entitled to rely on insurance consultants (subject hazards are at the applicable servicer’s expensetime not commonly insured against by prudent owners of properties similar to the Mortgaged Property located in or around the region in which such Mortgaged Property is located or (ii) in determining whether any such insurance is not available at commercially reasonable ratesany rate. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor Obligor under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided, that is an Excluded Loan as to such party) that all such insurance is 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 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 Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer 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 (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in applicable Issuer and 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, Indenture Trustee; 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 1 contract

Samples: Management and Servicing Agreement (Spirit Finance Corp)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans and (other than a Non-to the extent that the Trust Fund has an insurable interest) Companion Loans including Specially Serviced Mortgage Loan124 Mortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 shall, consistent with the Servicing Standard, cause the Mortgagor to maintain, to the extent required by the terms of the related Mortgage Loan documentsDocuments, 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 the Special Servicer, as the case may be). If if the Mortgagor does not so maintain, shall itself 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 for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under the terms of the Mortgage Loans (other than a Non-Serviced or the Mortgage Loan) and any related Serviced Companion Loan) or Loan Documents, the Special Servicer (with respect to REO may require that earthquake insurance be secured for one or more Mortgaged Properties other than any Non-Serviced Mortgaged Property) except to at the extent that the failure expense of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer Trust Fund (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, including the Special Servicer, as applicable, shall impose or maintain, as applicable, 's costs and expenses incurred in obtaining such insurance requirements as are consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyinsurance)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent as of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Closing Date; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documentsDocuments), (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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan Documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Master Servicer or the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any 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 (c) subject to the prior approval of the Controlling Class Representative (which approval is deemed granted if not denied within 10 125 Business Days after its receipt of the Master Servicer's or the Special Servicer's request for such approval), such insurance is not available at commercially reasonable rates and the subject hazards are not 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 Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or a 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan 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 3.14(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 Collection 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 (other than a Non-Serviced 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 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) use reasonable efforts to monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Fund or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the TrustTrust Fund. During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Comm Mort Ps THR Certs Ser 2003-Key1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The applicable Master Servicer (with respect to the Mortgage Loans (other than a Non-it is obligated to service hereunder and the related Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loanor the Special Servicer (with respect to REO Properties) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be)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 (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanLoans) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged PropertyProperties) shall maintain all insurance coverage as is required under the related Mortgage, Mortgage Loan but only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that , as determined by such insurance coverage is not available Master Servicer (or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) insurance against property damage resulting from terrorist or the Special Servicer (similar acts or insurance with respect to REO Properties other than any Non-Serviced Mortgaged PropertyProperties, the Special Servicer) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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, with respect to REO Property, or the Special Servicer, as applicablethe case may be, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard 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 such Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the such Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and rates as determined by the Special Servicer, provided that such Master Servicer shall be entitled to conclusively rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratessuch determination. Subject to Section 3.15(a3.17(a) and the costs of such insurance being reimbursed or paid to the Special Servicer as provided in the third-to-last penultimate sentence of this paragraph, the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is not available at commercially reasonable rates or rates, provided that the Trustee does not have an insurable interest, in which case the such Master Servicer shall be entitled to conclusively rely on the Special Servicer’s such determination. All Insurance Policies maintained by the Master Servicer 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 (other than any Non-Serviced Mortgage Loan), including any related Serviced and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 applicable Master 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection applicable Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the applicable Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by the applicable 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 Collection 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)Loan, 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 3.14(c3.16(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable 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 Collection Account)Advance. The foregoing provisions of this Section 3.07 paragraph shall apply to any Serviced Whole a Mortgage Loan and its related Companion Loan as if it each pair 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 (other than a Non-Serviced 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 or the Companion Loan 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 (including any related Serviced or the Companion Loan) Loans reasonably requires from time to time in order to protect its interests, the applicable Master Servicer shallwill be required to, consistent with the Servicing StandardStandards, (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 upon on the applicable Master Servicer’s 's compliance with the immediately preceding clauses (A) and (B) above)) that any Mortgagor under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard Standards that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by the Special Servicer) shall notify the applicable Master Servicer and the such Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and the Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants maintained in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions existaccordance with this Section 3.07(a). Furthermore, the Master Special Servicer or shall inform the Special Servicer, Rating Agencies as applicable, shall promptly deliver to 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and the such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp7)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans and (other than a Non-to the extent that the Trust Fund has an insurable interest) Companion Loans including Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 maintainshall, consistent with the Servicing Standard, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 terms of the Mortgage Loan, provided that, with respect to or the immediately preceding provisoMortgage Loan Documents, the Master Servicer shall Majority Subordinate Certificateholder may request that earthquake insurance be obligated to use efforts consistent with secured for one or more Mortgaged Properties at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent expense of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesMajority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan Documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance for an REO Property that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any 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 (c) subject to the rights of and consultation with the Controlling Class Representative, such insurance is not available at commercially reasonable rates and the subject hazards are not 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 Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or a 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with Loans to the Servicing Standard to cause extent that the Mortgagor to maintain (Trust Fund has an insurable interest, but other than with respect to a Nonthe 2006-C23 Serviced Mortgage Loan and its related Companion Loan), ) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. For the avoidance of doubt, REO Property with respect to the 2006-C23 Serviced Mortgage Loan is excluded for all purposes from this Section 3.07. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless such insurance was required at similar acts, if and only if the time of origination of Master Servicer with respect to non-Specially Serviced Mortgage Loans or the related 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 a Nonthe 2006-C23 Serviced Mortgage Loan), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) and such insurance is currently not available at any rate or (b) such insurance is not available at commercially reasonable rates. Notwithstanding reasonably rates and that such hazards are not at the foregoing, with respect time commonly insured against for properties similar to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) Mortgaged Property and any related Serviced Companion Loan that either (x) 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 Mortgagor borrower to maintain “all risk” property terrorism insurance (and do not expressly permit an exclusion for terrorism) provided that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver such conclusions in writing not be required 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 do so; provided, further, during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. The Special Servicer shall promptly notify the Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Serviced Mortgage Loan), Specially Managed Units) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertiesSpecially Managed Units) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Tenant or Borrower to maintain for each Property all insurance coverage as is required under the terms of the related Mortgage Loan documents except Lease or Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease or Loan permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant or Borrower is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard; and provided, further, that, if availableand to the extent that a Lease or Loan so permits, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer related Tenant or Borrower shall be entitled required to rely on insurance consultants (at obtain the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(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 required insurance coverage than was previously from Qualified Insurers that 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 of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than insurance or, with respect to a Mortgage Loan any Environmental Policy in place as of the related Series Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that is the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an Excluded Loan as to such partyinsurable interest or the Property Manager has determined, in its reasonable judgment in accordance with the Servicing Standard, that either (i) that such insurance is not available at a 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 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 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 Standard rate and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(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 Collection 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 hazards are at the time not commonly insured against by prudent owners of origination of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates. Notwithstanding the foregoing, with respect properties similar to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) require Property located in or around 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 region in types and against which 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 located 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for is not available at any loss related to its failure to require the Mortgagor to maintain (or its failure 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.rate. Subject to

Appears in 1 contract

Samples: Management and Servicing Agreement (Essential Properties Realty Trust, Inc.)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loanand Companion Loans to the extent that the Trust Fund has an insurable interest) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related 111 Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, 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 case of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates. Notwithstanding the foregoingSpecial Servicer, with respect to the Mortgage Loans (other than a Non-any Specially Serviced Mortgage Loan) ), and any related Serviced Companion Loan that either (x) require the shall not cause a Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring be in default with respect to the applicable failure of the related Mortgagor to maintain obtain, all-risk casualty insurance in types which does not contain any carve-out for terrorist or similar acts, if 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) only if the related Mortgage Loan is a Specially Serviced Loan, 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 in consultation with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (Controlling Class Representative, and, with respect to a Noneach Co-Specially Serviced Lender Loan) or , in consultation with the Special Servicer (with respect to a Specially Serviced Loan) determines related Companion Holder if required under the applicable 112 Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) such failure insurance is not an Acceptable Insurance Defaultavailable at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located; provided, however, the Special Servicer (with regard Controlling Class Representative shall not have more than three Business Days to such determination made by respond to the Special Servicer) shall notify ’s request for consultation; provided, further, that upon the Master Servicer and the Master Servicer shall use efforts Special Servicer’s determination consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and Standard, that exigent circumstances do not allow the Special Servicer (at to consult with the 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 the Master Servicer) in determining whether Additional Exclusions exist. FurthermoreControlling Class Representative or Companion Holder, the Master Servicer or if applicable, the Special Servicer, as applicableshall not be required to do so; provided, 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 further, that, during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and The Special Servicer shall promptly notify the Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C24)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan documents, Mortgaged Property 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 such insurance coverage is an Acceptable Insurance Default (and except available at commercially reasonable terms as provided in the next sentence with respect to determined by the Master Servicer or the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any provided that any such determination that such insurance coverage is not available or not available at commercially reasonable rates terms shall be made with consented to by the consent Majority Certificateholder of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced LoanControlling Class); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan) shall be obligated (to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (extent available at commercially reasonable terms as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the Special 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 (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(awhich may be through a master or single interest policy) 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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, deductible relating to such insurance and in any event, the amount necessary to avoid the operation out of any co-insurance provisions, (iv) include a replacement pocket 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.obtaining advice of

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, each exercise its reasonable best efforts to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except cause 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts exercise such discretion in a manner consistent with the Servicing Standard Standard; and provided further that, if and to cause the extent that a Mortgage so permits, the related Mortgagor shall be required to maintain (exercise its reasonable best efforts to obtain the 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 to itself maintain) insurance against property damage resulting from terrorist or similar acts unless more Mortgaged Properties at the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent expense of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesMajority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent 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 Directing Certificateholder (prior ratings then assigned to the occurrence and continuance of a Control Termination Event) and after consultation Certificates, as evidenced in writing by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Rating Agencies. All such insurance is policies shall contain (if they insure against loss to property and do not available at commercially reasonable rates or that the Trustee does not have relate to 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 (iREO Property) 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 LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (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 each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 the terms of the related Mortgage and in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with Loans to the Servicing Standard to cause extent that the Mortgagor to maintain (Trust Fund has an insurable interest, but other than with respect to a the Non-Serviced Mortgage Loan), Loans and their related Non-Serviced Companion Loans) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan 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 Trust Fund has an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicerinsurable interest, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination but other than with respect to any required Servicing Advance, the Master Servicer (with respect REO Property related to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or shall, consistent with the Special Servicer (with respect Servicing Standard, cause to REO Properties other than a Non-Serviced be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. For the avoidance of doubt, REO Property with respect to the Non-Serviced Mortgage Loans is excluded for all purposes from this Section 3.07. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless such insurance was required at similar acts, if and only if the time of origination of Special Servicer, in consultation with the related Mortgage Controlling Class Representative, and, with respect to each Co-Lender Loan (other than a the Non-Serviced Mortgage LoanLoans), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) and such insurance is currently not available at any rate or (b) such insurance is not available at commercially reasonable rates. Notwithstanding reasonably rates and that such hazards are not at the foregoing, with respect time commonly insured against for properties similar to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) Mortgaged Property and any related Serviced Companion Loan that either (x) require located in or around 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 region in types and against which 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 interestsMortgaged Property is located; provided, however, the Master Servicer shallControlling 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, notify exigent circumstances do not allow 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 consult with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) Controlling Class Representative or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance DefaultCompanion Holder, if applicable, the Special Servicer (with regard shall not be required to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoredo so; provided, the Master Servicer or the Special Servicerfurther, as applicablethat, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. The Special Servicer shall promptly notify the Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (and Companion Loans to the extent that the Trust Fund has an insurable interest, but other than a Nonthe 2004-C15 Serviced Mortgage LoanLoans and their related Companion Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided, further, that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. REO Property with respect to the 175 West Jackson Loan and 180 Maiden Lane Loan is excluded for all puxxxxxx xx xxxx Xection 3.00. Xxx xxxx xx any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless such insurance was required at similar acts, if and only if the time of origination of Master Servicer with respect to non-Specially Serviced Mortgage Loans or the related 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 a Non-Serviced Mortgage the 175 West Jackson Loan and the 180 Maiden Lane Loan), in consultation xxxx xxx xxxxxxx Companion Holxxx xx xxxxxxxx under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) and such insurance is currently not available at any rate or (b) such insurance is not available at commercially reasonable rates. Notwithstanding reasonably rates and that such hazards are not at the foregoing, with respect time commonly insured against for properties similar to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) Mortgaged Property and any related Serviced Companion Loan that either (x) 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 Mortgagor borrower to maintain “all risk” property terrorism insurance (and do not expressly permit an exclusion for terrorism) provided, that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 required to be maintaineddo so.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C16)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to Mortgage Loans) or the Special Servicer (with respect to Specially Serviced Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion LoanREO Properties) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, Note 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 the Special Servicer, as the case may be)Mortgage. 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 and at the direction of the Special Servicer in the case of a Non-Specially Serviced Mortgage Loan) and any related Serviced Companion Loan) or the Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged PropertyProperties) 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, as applicable, Servicer and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 Master Servicer or, with respect to REO Property, or 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 LoanStandards, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 3.15(a3.17(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 than was previously required of the Mortgagor under the related Mortgage Loan documents and Companion Loan unless the Special Servicer determines Servicer, with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) consent, determines that such insurance is 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 determinationrates. 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 and Companion Loan, 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, and or (y) the outstanding principal balance owing on the related Mortgage Loan, Companion 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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsand Companion Loan) shall be deposited in the Collection 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 and Companion Loan) Loans (other than REO Properties and other than any Non-Serviced Mortgage LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. 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 interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan borrower fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the related Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyinsurance, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The applicable Master Servicer (with respect to the Mortgage Loans (other than a Non-each Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to each Administered REO Properties other than any Non-Serviced Mortgaged PropertiesProperty) shall maintain, use reasonable efforts to the extent required by the terms of require the related Mortgage Loan documentsMortgagor to maintain or, all insurance coverage as is required under consistent with the related Mortgage Loan documents except Servicing Standard and to the extent that the failure of Trust has an insurable interest and the related Mortgagor to do so is an Acceptable Insurance Default (and subject coverage, except as provided in the next sentence below with respect to the Master Servicer insurance against terrorist or the Special Servicersimilar acts, as the case may be). If the Mortgagor does not so maintain such insurance coverageis available at commercially reasonable rates, subject otherwise cause 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the applicable Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided, further, that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the applicable required insurance coverage from Qualified Insurers and required insurance coverage obtained by the applicable Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the applicable Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation be paid by the Special applicable Master Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in 3.03. The Majority Controlling Class Certificateholder may request that earthquake insurance be secured for one or more Mortgaged Properties at the case expense of the Directing Certificateholder and Risk Retention Consultation PartyMajority Controlling Class Certificateholder, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Property) except to the extent that the failure of Trust has an insurable interest; provided that neither the related Mortgagor to do so is an Acceptable Insurance Default as determined by the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or nor the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with obtain at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent expense of the Directing Certificateholder Trust earthquake or environmental insurance for any Mortgaged Property securing a Serviced Mortgage Loan unless (unless a Control Termination Event has occurredi) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (it was in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (effect at the applicable servicer’s expenseClosing Date or (ii) in determining whether any insurance is required under the related loan documents and is available at commercially reasonable rates. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each Administered REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the applicable Master Servicer or the Special Servicer shall (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 Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion Loan, other than REO Properties; (ii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Administered REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 135 of (xA) the full replacement cost of the improvements securing on the subject Mortgaged Property or the Administered REO Property, as applicable, and or (yB) the outstanding principal balance owing on the related Serviced Mortgage Loan (including any related Serviced Companion Loan) or REO Mortgage Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, ; (ivv) shall include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Serviced 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 shall include such other insurance, including, to the first proviso 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the applicable Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in in, as applicable, the applicable Master Servicer's Collection Account, subject to withdrawal pursuant to Section 3.05(a), or any related A/B 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 costs cost incurred by the applicable Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Serviced Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such the related Serviced Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by Notwithstanding the foregoing, subject to Section 6.11 and Section 6.12, in each case as and if applicable, no Master Servicer or 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 3.14(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 Collection 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 shall not cause a Mortgagor to 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 (other than a Non-Serviced 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 failure of the related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property obtain, fire and extended perils casualty insurance (which does not contain any carve-out for terrorist or similar acts, if 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 interestsonly if, the Master Servicer shallSpecial Servicer, consistent in consultation with the Servicing StandardControlling Class Representative, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines determined in accordance with the Servicing Standard that either (i) such failure insurance is not an Acceptable Insurance Defaultavailable at any rate or (ii) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the subject Mortgaged Property and located in or around the region in which the 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 (with regard shall not be required to such determination made by the Special Servicer) shall notify the Master Servicer do so; and the Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreprovided, the Master Servicer or the Special Servicerfurther, as applicablethat, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from hereunder, the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the applicable Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. The Special Servicer shall promptly notify the applicable Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Specially Serviced Mortgage Loan), Assets) and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesAssets) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Obligor to maintain for each Mortgaged Property all insurance coverage as is required under the related terms of such Lease or Mortgage Loan documents except Loan, as applicable (including for the avoidance of doubt, any Environmental Policy); provided, that if and to the extent that any such Lease or Mortgage Loan permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Obligor is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard; and provided, further, that, if availableand to the extent that a Lease or Mortgage Loan so permits, can the related Obligor shall be obtained required to obtain the required insurance coverage from Qualified Insurers that 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 the state wherein the related Obligor or the Mortgaged Property subject to the policy, as applicable, is located. If such Obligor does not maintain the required insurance or, with respect to any Environmental Policy in place as of the applicable First Collateral Date, the Property Manager will itself cause such insurance 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 (as mortgagee of record on behalf of the Noteholders) does not have an insurable interest or the Property Manager has determined (in its reasonable judgment in accordance with the Servicing Standard) that either (i) such insurance is not available at a commercially reasonable rates. The Master Servicer rate and the Special Servicer shall be entitled to rely on insurance consultants (subject hazards are at the applicable servicer’s expensetime not commonly insured against by prudent owners of properties similar to the Mortgaged Property located in or around the region in which such Mortgaged Property is located or (ii) in determining whether any such insurance is not available at commercially reasonable ratesany rate. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor Obligor under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided, that is an Excluded Loan as to such party) that all such insurance is 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 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 Special Servicer’s determination. All Insurance Policies maintained by the Master Servicer 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 (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf Property Manager, as agent of and for the account of the Trustee (in applicable Issuer and 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 applicableIndenture Trustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (and Companion Loans and to the extent that the Trust Fund has an insurable interest, but other than a Nonthe 2004-C10 Serviced Mortgage LoanLoan and its related Companion Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to Specially Serviced Mortgage Loans and REO Properties other than any Non-Serviced Mortgaged Properties) shall maintainshall, consistent with the Servicing Standard, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided, further, that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. REO Property with respect to the 11 Madison Avenue Loan is excluded fxx xxx xxxxxxxx xf this Section 3.07. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to 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 (other than a Non-Serviced 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 failure of the related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property obtain, all-risk casualty insurance (which does not contain any carve-out for terrorist or similar acts, if, and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring only if the applicable Mortgagor to maintain insurance Special Servicer, 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 interests, the Master Servicer shall, consistent consultation with the Servicing StandardControlling Class Representative, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines determined in accordance with the Servicing Standard that either (a) such failure insurance is not an Acceptable Insurance Defaultavailable at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located; 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 (with regard shall not be required to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoredo so; provided, the Master Servicer or the Special Servicerfurther that, as applicable, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure; provided that the Master Servicer has given prompt notice to the Special Servicer of its determination that it will not itself maintain be successful in its efforts to cause the Mortgagor to obtain such insurance or cause insurance, along with its determination, and any information in its possession, regarding the availability and cost of such insurance to be maintainedinsurance. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C12)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with Loans to the Servicing Standard to cause extent that the Mortgagor to maintain (Trust Fund has an insurable interest, but other than with respect to a Non-the [__________] Serviced Mortgage Loan and its related Companion Loan), ) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall 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 is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, 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 case of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates. Notwithstanding the foregoingSpecial Servicer, with respect to the Mortgage Loans (other than a Non-any Specially Serviced Mortgage Loan) ), and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if and only if the 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 Serviced Companion Loan Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (xa) such insurance is not available at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the Mortgagor borrower to maintain “all risk” property terrorism insurance (and do not expressly permit an exclusion for terrorism) provided that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 required to be maintaineddo so.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (and the Crowne Plaza Companion Loan other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) or shall, consistent with the Special Servicer (with respect Servicing Standard, cause to REO Properties other than a Non-Serviced be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided further that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 rates3.03. The Master Servicer and the Special Servicer shall Majority Subordinate Certificateholder may request that earthquake insurance be entitled to rely on insurance consultants (secured for one or more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies maintained by the Master Servicer or the Special Servicer shall such insurance policies (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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, 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 coshall be non-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 cancelable without thirty (30) days 30 days' prior written notice to the insured party party; and (except iv) in the case of nonpayment, in which each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection Certificate Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan or the 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced the Crowne Plaza 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loanand Companion Loans to the extent that the Trust Fund has an insurable interest) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless 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, in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) such insurance was required is not available at the time of origination of the related Mortgage Loan any rate or (other than a Non-Serviced Mortgage Loanb) and such insurance is currently not available at commercially reasonably rates (which determination as to whether such insurance is available at commercially reasonable rates. Notwithstanding rates shall be made subject to consultation with the foregoing, Special Servicer in consultation with and subject to the approval of the Controlling Class Representative with respect to the all Mortgage Loans (other than a Non-Serviced Mortgage LoanLoans) and any related Serviced Companion Loan that either (x) such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the Mortgagor to maintain “all risk” property terrorism insurance or windstorm coverage (and do not expressly permit an exclusion for terrorism) provided that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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 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, upon the Master Servicer’s or the Special Servicer’s determination, as applicable, 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; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver such conclusions in writing not be required 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 do so; provided, further, during the period that the Master Special Servicer or the Special Servicer Controlling Class Representative is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Partyhereunder, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall not be liable for any loss related to its failure to require the Mortgagor to maintain (terrorism insurance or its failure to maintain) such insurance windstorm coverage and will shall not be in default of its obligations hereunder as a result of such failure and failure. The Special Servicer shall promptly notify the Master Servicer will not itself maintain such insurance or cause such insurance to be maintainedof each determination under this paragraph.

Appears in 1 contract

Samples: Distribution Instructions (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard Standards to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage Loan documents, (other than the Forum Shops Mortgage Loan) all insurance coverage as is required under the related Mortgage Loan documents Mortgage, 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan)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 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 LoanStandards, provided that, with respect to the immediately preceding proviso, the Master Servicer shall will be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s 's failure is an Acceptable Insurance Default (as determined by Default; provided that the Master Servicer (shall not itself be required to maintain any insurance coverage with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance Mortgaged Property that 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. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is not available at commercially reasonable ratesrates or as to which the Trustee, as mortgagee, does not have an insurable interest. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior Loan, to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available extent obtainable 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 determinationrates. 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 or (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 noncancellable without thirty (30) 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) 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 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 Standard Standards and the provisions of the related Mortgage Loan documentsLoan) shall be deposited in the Collection 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 LoanProperties) (i) if the Mortgagor defaults on its obligation 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 Collection 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)Loan, 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 3.14(c3.16(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 Collection 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 (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesAdvance. Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the Master Servicer shall, consistent with the Servicing Standard, will be required to (A) actively monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a)insurance, neither the Master Servicer nor the Special Servicer will be liable for any loss related to its the Servicer's failure to require the Mortgagor to maintain (or its failure 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 maintainedfailure.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Jp Mortgage Chase Comm Mort Pass THR Certs Ser 2004-Cibc8)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) or shall, consistent with the Special Servicer (with respect Servicing Standard, cause to REO Properties other than a Non-Serviced be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts exercise such discretion in a manner consistent with the Servicing Standard Standard; and provided further that, if and to cause the extent that a Mortgage so permits, the related Mortgagor shall be required to maintain (exercise its reasonable best efforts to obtain the 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 to itself maintain) insurance against property damage resulting from terrorist or similar acts unless more Mortgaged Properties at the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent expense of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesMajority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent 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 qualification, downgrading or withdrawal of the Directing Certificateholder (prior ratings then assigned to the occurrence and continuance of a Control Termination Event) and after consultation Certificates, as evidenced in writing by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Rating Agencies. All such insurance is policies shall contain (if they insure against loss to property and do not available at commercially reasonable rates or that the Trustee does not have relate to 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 (iREO Property) 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 LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (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 each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Each of the Master Servicer (with respect and the Special Servicer shall, as to the those Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall it is obligated to service hereunder, use its reasonable efforts consistent in accordance with the Servicing Standard to cause the Mortgagor related Borrower to maintain (other than with respect to a Non-and, if the related Borrower does not so maintain, the Master Servicer (even in the case of Specially Serviced Mortgage Loan)Loans) shall itself maintain (subject to the provisions of this Agreement regarding Nonrecoverable Advances, and the Special Servicer (with respect further subject to REO Properties other than any Non-Serviced Mortgaged PropertiesSection 3.11(h) shall maintainhereof, and to the extent required by the terms Trustee, as mortgagee on behalf of the related Mortgage Loan documentsCertificateholders, has an insurable interest and to the extent available at commercially reasonable rates) 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loanapplicable law); provided, however, provided that if any Mortgage permits the holder thereof to dictate to the Mortgagor Borrower the insurance coverage to be maintained on such Mortgaged Property, the Master Servicer or, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 ratesStandard. The Master Servicer and the Special Servicer shall cause to 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 3.15(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 maintained for each REO Property Property, in each case with an insurer that possesses (other than any Nonor whose obligations are guaranteed or backed, in writing, by an entity having) the Required Claims-Serviced Mortgaged Property) Paying Ratings at the time such policy is purchased, no less insurance coverage than was previously required of the Mortgagor related Borrower under the related Mortgage Loan documents unless and, if the Special Servicer determines related Mortgage did not so require, hazard insurance, public liability insurance, business interruption or rent loss insurance and, to the extent consistent with the consent of the Directing Certificateholder (prior to the occurrence Servicing Standard, flood and continuance of a Control Termination Event) and after consultation by the Special Servicer earthquake insurance, all in such amounts as are consistent with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interestServicing Standard, 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 and the Special Servicer shall (i) be reimbursed for the premium costs thereof as a Servicing Advance pursuant to and to the extent permitted under Section 3.05(a). All such insurance policies shall 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 the Mortgaged 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 on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties)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, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 MortgagorBorrower, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) 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 costs cost incurred by the Master Servicer or the Special Servicer, as applicable, 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, solely for purposes of 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 and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by the Special Servicer ; provided, however, that this provision is in maintaining any such Insurance Policies with respect no way intended to REO Properties shall be an expense of the Trust payable out of affect amounts due and owing from the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Servicing Advance (so long as Borrower under 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loanand Companion Loans and to the extent that the Trust Fund has an insurable interest) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 maintainshall, consistent with the Servicing Standard, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; and provided, further, that, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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 rates3.03. The Master Servicer and the Special Servicer shall Majority Subordinate Certificateholder may request that earthquake insurance be entitled to rely on insurance consultants (secured for one or more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) 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 include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan documents; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to REO Properties), as applicable, will not be required to maintain and shall not cause a Specially Serviced Loan) determines Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if, after the Master Servicer provides the Special Servicer the information described in the immediately succeeding sentence for Mortgage Loans but not REO Properties, the Special Servicer, in consultation with the Controlling Class Representative and, with respect to the Smithfield Mortgage Loan unless a Smithfield Trigger Event has occurred and is continuing, the Smithfield Companion Holder, has determined in accordance with the Servicing Standard that either (a) such failure insurance is not an Acceptable Insurance Defaultavailable at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located; provided, however, the Controlling Class Representative or Smithfield Companion Holder, if applicable, 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 Smithfield Companion Holder, if applicable, the Special Servicer (with regard shall not be required to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoredo so; provided, the Master Servicer or the Special Servicerfurther that, as applicable, 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 during the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request hereunder, none of the Risk Retention Consultation PartyMaster Servicer, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will or the Controlling Class Representative shall be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. If the Master Servicer will becomes aware that a Mortgagor is not itself maintain maintaining insurance against terrorist or similar acts as required under the related Mortgage, the Master 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 Master Servicer believes the Special Servicer should review the matter, (iv) copies of all relevant documentation in the possession of the Master Servicer to the extent not already provided to the Special Servicer, and (v) such insurance or cause such insurance to other information (other than quotes for insurance) as shall reasonably be maintainedrequested by the Special Servicer and in the possession of the Master Servicer. The Special Servicer shall promptly notify the Master Servicer of each determination under this paragraph.

Appears in 1 contract

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

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (Servicers, with respect to each of the Mortgage Loans (other than a Non-Loans, including Specially Serviced Mortgage Loan) Loans, and any related Serviced Companion Loan) the Special Servicer, with respect to REO Properties, shall use its efforts reasonable efforts, consistent with the Servicing Standard Standard, to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). If if the Mortgagor does not so maintain, shall itself 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 for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicers shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided, further that, if and to the extent that a Mortgage so permits, the applicable Master Servicer shall use reasonable efforts to cause the related Mortgagor to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicers shall be from Qualified Insurers. The cost of any such insurance is available to the coverage obtained by either Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with a Servicing Advance to be paid by the consent applicable Master Servicer pursuant to Section 3.03. If not required under the terms of the Directing Certificateholder (prior to Mortgage or the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Mortgage Loan as to the Directing Certificateholder) (ordocuments, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with may require that earthquake insurance be secured for one or more Mortgaged Properties at the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case expense of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by the Master Servicer Trust Fund (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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, including the Special Servicer, as applicable, shall impose or maintain, as applicable, 's costs and expenses incurred in obtaining such insurance requirements as are consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such partyinsurance)) 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. The Master Servicer and the 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent as of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Closing Date; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the either Master Servicer or the Special Servicer shall (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 applicable Master Servicer on behalf of the Trustee (and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)) (in the case of insurance maintained in respect of Mortgage Loans Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Master Servicers and the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance coverage that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any rate; (b) such insurance is not available from a Qualified Insurer (provided that either Master Servicer or the Special Servicer, as applicable, shall obtain such insurance from the next highest rated insurer offering such insurance at commercially reasonable rates); (c) subject to the prior approval of the Controlling Class Representative (which approval is deemed granted if not denied within 10 Business Days after its receipt of the applicable Master Servicer's or the Special Servicer's request for such approval), such insurance is not available at commercially reasonable rates and, as determined by the applicable Master Servicer or the Special Servicer following due inquiry conducted in a manner consistent with the Servicing Standard, the subject hazards are not 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 the then current market rates); or (d) the Trustee does not have an insurable interest in the related Mortgaged Property or REO Property. Any amounts collected by the either Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the applicable Master Servicer's Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan (other than a Loan Combination), or in the related Loan Combination Custodial Account, subject to withdrawal pursuant to Section 3.05(e), in the case of amounts received in respect of a Loan Combination, 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 costs cost incurred by either Master Servicer or the Master Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 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 (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the applicable Master Servicer shall, consistent with the Servicing Standard, will be required to (A) use reasonable efforts to monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the such Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by the Special Servicer) shall notify the applicable Master Servicer and the such Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. The Master Servicer and Furthermore, the Special Servicer (at shall inform the expense of the Trust) shall be entitled Rating Agencies as to rely on insurance consultants in making such determinations. The Master Servicer shall be entitled to rely on insurance consultants (at the expense of the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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) 10 highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust Fund or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the TrustTrust Fund (and, if a Loan Combination satisfies clause (i) and/or clause (ii), the Special Servicer shall also inform the related Non-Trust Noteholder(s) as to such conclusion). During the period that the Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from insurance, the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the applicable Master Servicer nor the Special Servicer will not be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and the such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with Loans to the Servicing Standard to cause extent that the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), Trust Fund has an insurable interest and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, 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 case of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates. Notwithstanding the foregoingSpecial Servicer, with respect to the Mortgage Loans (other than a Non-any Specially Serviced Mortgage Loan) ), and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if and only if the 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 Serviced Companion Loan Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (xa) such insurance is not available at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the Mortgagor borrower to maintain “all risk” property terrorism insurance (and do not expressly permit an exclusion for terrorism) provided, that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 required to be maintaineddo so.

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) The Master Servicer (with respect to the Mortgage Loans (and Companion Loans to the extent that the Trust Fund has an insurable interest, but other than a Nonthe 2005-C19 Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with , the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a NonLB-UBS 2005-C3 Serviced Mortgage Loan), the MSCI 2005-HQ6 Serviced Mortgage Loan and their related Companion Loans) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. REO Property with respect to the Non-Serviced Mortgage Loans is excluded for all purposes of this Section 3.07. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintainmaintain (and in the case of the Special Servicer, with respect to any Specially Serviced Mortgage Loan), and will shall not cause a Mortgagor to be in default for failing with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any earthquake carve-out for terrorist or environmental insurance on any Mortgaged Property unless such insurance was required at similar acts, if and only if the time of origination of Master Servicer with respect to non-Specially Serviced Mortgage Loans or the related 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 a the Non-Serviced Mortgage LoanLoans), in consultation with the related Companion Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (a) and such insurance is currently not available at any rate or (b) such insurance is not available at commercially reasonable rates. Notwithstanding reasonably rates and that such hazards are not at the foregoing, with respect time commonly insured against for properties similar to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) Mortgaged Property and any related Serviced Companion Loan that either (x) 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 Mortgagor borrower to maintain “all risk” property terrorism insurance (and do not expressly permit an exclusion for terrorism) provided, that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 required to be maintaineddo so.

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) The In the case of each Mortgage Loan, the Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable efforts consistent with the Servicing Standard to cause each Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master Servicer will itself cause to maintain be maintained, for each Mortgaged Property (other than with respect including each Mortgaged Property relating to a Non-any Specially Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required required, subject to applicable law, under the related Mortgage Loan documents except loan documents; provided that, if and to the extent that any such loan documents permit the failure holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advancemaintain, the Master Servicer (with respect to the Mortgage Loans (other than shall exercise such discretion in 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 manner consistent with the Servicing Standard taking 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 the insurance in place at the closing of the Mortgage Loan, provided thatloan origination, with respect a view towards requiring insurance comparable to the immediately preceding provisothat 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 obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor required to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available coverage upon the related Mortgagor's failure to do so only to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any extent that such insurance is available at commercially reasonable ratesrates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related Mortgage Loan loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided that is an Excluded Loan as to such party) that all such insurance is not available at commercially reasonable rates required to be maintained by Master Servicer or that the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on 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 Special Servicer’s determinationhighest 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 ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 the Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any related Serviced Companion Loanor shall name the Trustee) as the insured, other than REO Properties) or with loss payable 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in into the Collection 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 costs cost incurred by the Master Servicer or Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by ; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense on behalf of the Trust payable out to enforce any obligations of the related REO Account pursuant Mortgagor under such Mortgage Loan. Costs to Section 3.14(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 or Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to this Section 3.07 shall apply be paid by and reimbursable 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 maintainor the Special Servicer, and will not be in default for failing to obtainas the case may be, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan (other than as a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesServicing Advance. Notwithstanding the foregoing, if as of the Closing Date the loan documents specifically and expressly set forth terms requiring insurance coverage against terrorist or similar acts for a Mortgage Loan with respect 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 Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) 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 risk” property insurance the risks contained in the Additional Exclusions (and do not expressly permit an exclusion for terrorism) the covered risks required to be covered or (y) contain provisions generally requiring that the applicable Mortgagor lender has the discretion to maintain insurance in types and against such risks require to be covered being referred to as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests"Covered Risks"), the Master Servicer shall, consistent with the Servicing Standard, (A) monitor shall use reasonable efforts in accordance with the Servicing Standard whether to determine whether, upon renewal of the Mortgagor's property or casualty insurance policies for (including any all risk insurance policy), any of the related Mortgaged Property contain Additional Exclusions; provided that Covered Risks are excluded from coverage. If any of the Covered Risks are determined by the Master Servicer to be excluded from coverage, the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either (i) purchase insurance against acceptable to the risks specified Master Servicer in accordance with the Additional Exclusions Servicing Standard and in accordance with the related loan documents covering such Covered Risks or (ii) provide an a written explanation as to its reasons for failing to purchase such insurance and (C) if insurance. Notwithstanding the related Mortgage Loan is a Specially Serviced Loanforegoing, notify with the written consent of 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 in accordance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by Servicing Standard the Master Servicer pursuant may waive the requirement to clause (B) above. If procure insurance covering any of the Covered Risks if the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that (1) insurance covering any such failure Covered Risks is not an Acceptable Insurance Defaultavailable at a commercially reasonable price, the Special Servicer or (with regard 2) based on information reasonably available to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicerafter due inquiry, as applicable, shall promptly deliver any such conclusions in writing Covered Risks are at that time not commonly insured against for properties similar to the 17g-5 Information Provider for posting to Mortgaged Property and located in or around the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of region in which the ten (10) highest outstanding Stated Principal Balances of all of Mortgaged Property is located unless the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans Loan is greater than $[_________]. If the Stated Principal Balance of the Mortgage Loan is greater than $[_________], then included 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 Trustsecond 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. During 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 or Servicer, the Special Servicer is evaluating the availability of such insurance or waiting for a response from and/or the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will shall be liable for any loss related to its failure to require the a Mortgagor to maintain (or its failure to maintain) such terrorism insurance and will shall not be in default of its obligations hereunder as a result of such failure and failure. If the Master Servicer will not itself requires the Mortgagor to maintain such insurance or cause 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 maintainedthe 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.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts exercise such discretion in a manner consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) Standard; and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each caseprovided further that, other than with respect to any Excluded Loan as to such party)) if and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or extent that a Mortgage so permits, the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer related Mortgagor shall be entitled required to rely on obtain the required insurance consultants (coverage from Qualified Insurers that have a general policy rating of at the applicable servicer’s expense) least A:X in determining whether any insurance is available at commercially reasonable ratesA.M. Best's Key Rating Guide. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance shall be obtained from Qualified Insurers that, if they are providing casualty insurance, shall have a general policy rating of at least "A" from both Rating Agencies (or solely Standard & Poor's, if such insurer is 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 determinationrated by DCR). All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 PropertiesLoans) 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 on behalf 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 applicableTrustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 the terms of the related Mortgage and in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (other than a Non-including the Xxxxxxxx Fashion Center A/B Loan but excluding the Oakbrook Center Mortgage Loan and Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-solely in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan documents, Mortgaged Property 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 terms as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced LoanServicer, as applicable); 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, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or REO Loan) shall be obligated (to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (extent available at commercially reasonable terms as determined by the Master Servicer Servicer, which shall be entitled to rely (with respect to at its own expense) on an opinion of counsel or insurance consultants in making such determination) obtain such insurance (which may be through a Non-Specially Serviced Loan) master or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurredsingle interest policy) and after consultation the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Special Master Servicer with in obtaining advice of counsel or insurance consultants) of such insurance (or in the Risk Retention Consultation Party 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 6.08(a) (3.05(a). If the Master Servicer or Special Servicer, as the case may be, determines in each case, other than accordance with respect to any Excluded Loan as to such party)) and only in the event preceding provisions of this paragraph that the Trustee has an insurable interest therein and such applicable insurance is not available to at commercially reasonable terms, the Master Servicer or the Special Servicer, as the case may be, andshall 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 availableand 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, can be obtained at commercially use reasonable ratesefforts to cause the related 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 the Xxxxxxxx Fashion Center A/B Loan). The With respect to any 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 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 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, 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); provided, that the Master Servicer or Special Servicer shall not be entitled required to rely on insurance consultants incur any such cost if such Advance would constitute a Nonrecoverable Servicing Advance; provided, further, if the Master Servicer or Special Servicer, as applicable, shall determine that the payment of such amount is (at i) necessary to preserve the applicable servicer’s expenserelated Mortgaged Property and (ii) would be in determining whether any insurance is available at commercially reasonable ratesthe 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 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Propertyto the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines or as is consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Servicing Standard. All such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the Master Servicer policies 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 Mortgaged 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 on behalf 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 applicableTrustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documents(including the Xxxxxxxx Fashion Center A/B Loan) documents and the Servicing Standard) shall be deposited in the Collection 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 REO Property. Any costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid outstanding principal balance of the related Mortgage Loan and Serviced Companion Loan (if anyincluding the Xxxxxxxx Fashion Center A/B Loan), 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 , but shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced recoverable 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special ServicerSection 3.05(a)or 3.05(e), as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer (with shall use reasonable efforts to cause each Mortgagor to maintain in respect to of the Mortgage Loans related Mortgaged Property all insurance coverage (other than a Non-Serviced Mortgage Loan123 earthquake insurance) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, 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 orServicer, with respect to REO Property, or the Special Servicer, as applicableServicer in the case of Specially Serviced Mortgage Loans, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer shall (to the extent available at commercially reasonable rates and to the extent the Trustee, as mortgagee on behalf of the Trust, has an insurable interest) obtain such insurance (which may be obligated 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 (subject to the limitations set forth in Section 4.2(a)) 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), then upon the Master Servicer or 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 Loans, 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 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 itself maintain) insurance against property damage resulting from terrorist or similar acts unless require the Mortgagor’s failure is an Acceptable Insurance Default (as determined by Mortgagor to obtain such insurance, the Master Servicer (with respect shall promptly notify the Mortgagor of its obligation to a Non-Specially Serviced Loan) or obtain such insurance. If the Special Servicer (with respect Mortgagor fails to a Specially Serviced Loan) with the consent obtain such flood insurance within 120 days of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each casesuch notification, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer or shall obtain such insurance (to the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is extent available at commercially reasonable rates. Subject to Section 3.15(a) ), and the costs cost of such insurance being reimbursed or paid shall be a Servicing Advance recoverable by the Master Servicer pursuant to the Special Servicer as provided in the third-to-last sentence of this paragraph, the Section 5.2. The Special Servicer shall maintain cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that if obtaining such insurance is not available can be done at commercially reasonable rates or that rates. In addition, the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on the Special Servicer’s determinationcause to be maintained earthquake insurance for any REO Property if obtaining such insurance is in accordance with its Servicing Standard and such insurance can be obtained for such REO Property at commercially reasonable rates. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall (i) contain a "standard" mortgagee clauseclause or shall identify the Trustee as the named insured, as applicable, with any 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 Mortgaged Properties) or to the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO 124 Properties), (ii) be in the name on behalf 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 PoliciesTrustee. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsdocuments and the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a)5.2. Any costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid outstanding principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Heller Financial Commercial Mort Asset Corp Series 1999 Ph 2)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (and Companion Loans other than a Non-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 Property 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer shall be obligated to use efforts consistent with (at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or direction of the Special Servicer (with respect to in the case of a Specially Serviced Loan) with shall (to the consent of the Directing Certificateholder extent available at commercially reasonable terms) obtain such insurance (unless which may be through a Control Termination Event has occurredmaster or single interest policy) and after consultation 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 Special Master Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (3.05(a). If at any time a Mortgaged Property is located in each case, other than with respect to any Excluded Loan as to such party)) and only an area identified in the event Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Trustee 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 therein 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 or Companion Loan requires the Mortgagor or permits the mortgagee to require the Mortgagor to do so, use reasonable efforts to cause the related 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 or Companion Loan. If (i) the Mortgagor is required by the terms of the Mortgage Loan or Companion Loan to maintain such insurance is available (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 or Loan Group 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 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 Special Servicer pursuant to Section 3.05(a); provided that the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the or Special Servicer shall not be entitled required to rely on insurance consultants (at the applicable servicer’s expense) in determining whether incur any insurance is available at commercially reasonable ratessuch cost if such Advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Propertyto the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines or as is consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Servicing Standard. All such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the Master Servicer policies 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 Mortgaged 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 on behalf 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 applicableTrustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsor Companion Loan documents and 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 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid outstanding principal balance of the related Mortgage Loan and Serviced or Companion Loan (if any)Loan, 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 , but shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced recoverable 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a3.05(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Each of the Master Servicer (with respect to in the case of Mortgage Loans (other than a Non-Specially Serviced Mortgage LoanLoans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 Property 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, 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, with respect to REO Property, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer shall be obligated to use efforts consistent with (at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or direction of the Special Servicer (with respect to in the case of a Specially Serviced Loan) with shall (to the consent of the Directing Certificateholder extent available at commercially reasonable terms) obtain such insurance (unless which may be through a Control Termination Event has occurredmaster or single interest policy) and after consultation 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 Special Master Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (3.05(a). If at any time a Mortgaged Property is located in each case, other than with respect to any Excluded Loan as to such party)) and only an area identified in the event Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Trustee 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 therein 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 Mortgagor to maintain a flood insurance policy meeting the requirements 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) the Mortgagor is required by the terms of the Mortgage Loan to maintain such insurance is available (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 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 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 Special Servicer pursuant to Section 3.05(a); provided that the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the or Special Servicer shall not be entitled required to rely on insurance consultants (at the applicable servicer’s expense) in determining whether incur any insurance is available at commercially reasonable ratessuch cost if such Advance would constitute a Nonrecoverable Servicing Advance. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also use reasonable efforts to cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Propertyto the extent available at commercially reasonable terms) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines or as is consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Servicing Standard. All such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the Master Servicer policies 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 Mortgaged 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 on behalf 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 applicableTrustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 re leased to the related Mortgagor, in each case in accordance with applicable law, the Servicing Standard and the provisions terms of the related Mortgage Loan documents) documents and the Servicing Standard, shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid outstanding principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 , but shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced recoverable 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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a3.05(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Master Servicer Property Manager (with respect to the Mortgage Loans (Leases other than a Non-Serviced Mortgage LoanSpecially Managed Leases) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 PropertiesSpecially Managed Leases) shall maintain, cause to the extent required by the terms of the be maintained for each related Mortgage Loan documents, Mortgaged Property all insurance coverage as is required under the related Mortgage Loan documents except terms of such Lease; provided that if and to the extent that any such Lease permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, andshall exercise such discretion in a manner consistent with the Servicing Standard, with a view towards requiring insurance comparable to that required under other Leases with express provisions governing such matters; and provided, further, that, if availableand to the extent that a Lease so permits, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer related Tenant shall be entitled required to rely on obtain the required insurance consultants (coverage from Qualified Insurers that have a claims-paying ability rated at the applicable servicerleast “A-” by A.M. Best’s expense) in determining whether any insurance is available at commercially reasonable ratesKey Rating Guide. Subject to Section 3.15(a) and the costs of All such insurance being reimbursed or paid policies shall contain (if they insure against loss 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 Propertyproperty) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is 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 Property Manager, as agent of and for the account of the Trustee (in Issuer and 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 applicableIndenture Trustee, 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 1 contract

Samples: Property Management Agreement (Trustreet Properties Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain Property Manager (other than with respect to a Non-Serviced Mortgage Loan), Specially Managed Units) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged PropertiesSpecially Managed Units) shall maintain, use reasonable efforts in accordance with the Servicing Standard to the extent required by the terms of cause the related Mortgage Loan documents, Tenant to maintain for each Property all insurance coverage as is required under the terms of the related Mortgage Loan documents except Lease (including for the avoidance of doubt, any Environmental Policy or compliance with state insurance fund requirements); provided, that if and to the extent that any such Lease permits the failure lessor thereunder any discretion (by way 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 consent, approval or the Special Servicer, as the case may be). 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 Loanotherwise) 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if insurance coverage that the Directing Certificateholder’s consent related Tenant is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Propertymaintain, 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the Master Servicer Property Manager or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) exercise such discretion in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(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 than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines a manner consistent with the consent of Servicing Standard. If such Tenant does not maintain the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than required insurance or, with respect to a Mortgage Loan any Environmental Policy in place as of the related Series Closing Date or Transfer Date, the Property Manager will itself cause such insurance to be maintained with Qualified Insurers; provided, that is the Property Manager shall not be required to maintain such insurance if the Indenture Trustee (as mortgagee of record on behalf of the Noteholders) does not have an Excluded Loan as to such partyinsurable interest or the Property Manager has determined, in its reasonable judgment in accordance with the Servicing Standard, that either (i) that such insurance is not available at a commercially reasonable rates rate and the subject hazards are at the time not commonly insured against by prudent owners of properties similar to the Property located in or that around the Trustee does not have an insurable interest, region in which case the Master Servicer such Property is located or (ii) such insurance is not available at any rate. The cost of any such insurance coverage shall be entitled a Property Protection Advance to conclusively rely on be paid by the Special Servicer’s determinationProperty Manager, and such insurance coverage need not be obtained if it would constitute a Nonrecoverable Advance. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) contain a “standard” mortgagee clause, with loss payable to the Master Servicer on behalf of the Trustee Property Manager or an Emergency Protection Expense (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 limitations in the second sentence of this Section 3.07(a3.03), as agent of and for the account of the applicable Issuer and the Indenture Trustee, and shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer Property Manager or the Special Servicer under any such Insurance Policies 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 MortgagorTenant, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 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 2.11 of the Collection 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 maintainedIndenture.

Appears in 1 contract

Samples: Management and Servicing Agreement (American Finance Trust, Inc)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with Loans to the Servicing Standard to cause extent that the Mortgagor to maintain (Trust Fund has an insurable interest, but other than with respect to a Non-the [__________] Serviced Mortgage Loan and its related Companion Loan), ) and the Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of Trust Fund has an insurable interest) shall, consistent with the related Mortgagor Servicing Standard, cause to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the Master Servicer or the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that, but only if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard; provided, further, if and to the Trustee has an insurable interest therein extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall 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 is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case3.03. Whether or not the applicable Mortgage Loan documents require such insurance, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such Majority Subordinate Certificateholder may request that earthquake insurance is available to the Master Servicer be secured for one or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (more Mortgaged Properties at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable ratesexpense of the Majority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan document; and (vii) in the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan Loans so permit. Any cost incurred by Notwithstanding 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 3.14(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 Collection 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 contraryforegoing, the Master Servicer or Special Servicer, as applicable, will not be required to maintain, 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 case of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates. Notwithstanding the foregoingSpecial Servicer, with respect to the Mortgage Loans (other than a Non-any Specially Serviced Mortgage Loan) ), and shall not cause a Mortgagor to be in default with respect to the failure of the related Mortgagor to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if and only if the 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 Serviced Companion Loan Holder if required under the applicable Intercreditor Agreement, has determined in accordance with the Servicing Standard that either (xa) such insurance is not available at any rate or (b) such insurance is not available at commercially reasonably rates and that such hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the region in which such Mortgaged Property is located and the Controlling Class Representative has approved the decision not to require the Mortgagor borrower to maintain “all risk” property terrorism insurance (and do not expressly permit an exclusion for terrorism) provided that the decision of the Controlling Class Representative to grant or (y) contain provisions generally requiring withhold such consent shall be disregarded by the applicable Mortgagor to maintain insurance in types and against Special Servicer if such risks as the holder consent or lack of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, consent would cause the Master Servicer shallor 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, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that exigent circumstances do not allow the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance consult with the Servicing Standard that such failure is not an Acceptable Insurance DefaultControlling Class Representative or Companion Holder, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermoreif applicable, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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 required to be maintaineddo so.

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) The Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its reasonable efforts consistent with the Servicing Standard to cause each Mortgagor to maintain, and, if the Mortgagor to maintain (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 does not so maintain, the Master Servicer will itself cause to the extent required by the terms of the related Mortgage Loan documentsbe maintained, for each Mortgaged Property (including each Mortgaged Property relating to any Specially Serviced Loan) all insurance coverage as is required required, subject to applicable law, under the related Mortgage Loan documents except documents; provided that, if and to the extent that any such Loan documents permit the failure holder thereof any discretion (by way of consent, approval or otherwise) as to the insurance coverage that 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 the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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, provided that, with respect to the immediately preceding proviso, the Master Servicer shall be obligated to use efforts exercise such discretion in a manner consistent with the Servicing Standard Standard, with a view towards requiring insurance comparable to cause the Mortgagor to maintain (that required under other Loans with express provisions governing such matters and including business interruption or to itself maintain) rental loss insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by for at least 12 months; and provided, further, that the Master Servicer (with respect shall be required to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and maintain such insurance is available coverage upon the related Mortgagor's failure to do so only to the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer and the Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any extent that such insurance is available at commercially reasonable ratesrates and the Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject to Section 3.15(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 paragraph3.17(b), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage (to the extent available at commercially reasonable rates) (A) than was previously required of the related Mortgagor under the related Mortgage Loan documents unless 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 Special Servicer determines type and geographic location of such REO Property and consistent with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Servicing Standard; provided that is an Excluded Loan as to such party) that all such insurance is not available at commercially reasonable rates required to be maintained by Master Servicer or that the Trustee does not have an insurable interest, in which case the Master Special Servicer shall be entitled to conclusively rely on 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 Special Servicer’s determinationhighest 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 ability as would not, as confirmed in writing by the relevant Rating Agency, result in an Adverse Rating Event. All Insurance Policies maintained by the Master Servicer or the Special Servicer such insurance policies shall contain (iif they insure against loss to property) 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 the Mortgage Loans (other than any Non-Serviced Mortgage LoanLoans), including any or shall name the Trustee, (and in the case of a Loan Pair the related Serviced Companion LoanLoan holder(s)) as the insured, other than REO Properties) or with loss payable to the Special Servicer on behalf of the Trustee (and in the case of a Loan Pair the related Companion Loan holder(s)) (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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance, 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 the Special Servicer under any such Insurance Policies 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 documentsStandard) shall be deposited in the Collection Certificate Account or, if a Loan Pair is involved, the related Loan Pair 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 costs cost incurred by the Master Servicer or Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by ; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense on behalf of the Trust payable out or, if a Loan Pair is involved, on behalf of the related REO Account pursuant Companion Loan Noteholders to Section 3.14(c) or, if enforce any obligations of the amount on deposit therein is insufficient therefor, advanced by related Mortgagor under such Loan. Costs to 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 or Special Servicer of the Collection Account). The foregoing provisions of maintaining insurance policies pursuant to this Section 3.07 shall apply be paid by and reimbursable 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 maintainor the Special Servicer, and will not be in default for failing to obtainas the case may be, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan (other than as a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable ratesServicing Advance. Notwithstanding the foregoing, if the Loan documents specifically and expressly set forth terms requiring insurance coverage against terrorist or similar acts for a Loan with respect 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 Mortgage Loans (other than extent the Loan documents do not set forth specific terms requiring insurance coverage against terrorist or similar acts and a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) 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 risk” property insurance the risks contained in the Additional Exclusions (and do not expressly permit an exclusion for terrorism) the covered risks required to be covered or (y) contain provisions generally requiring which the applicable Mortgagor lender has the discretion to maintain insurance in types and against such risks require to be covered being referred to as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests"Covered Risks"), the Master Servicer shall, consistent with the Servicing Standard, (A) monitor shall use reasonable efforts in accordance with the Servicing Standard whether to determine whether, upon renewal of the Mortgagor's property or casualty insurance policies for (including any all risk insurance policy), any of the related Mortgaged Property contain Additional Exclusions; provided that Covered Risks are excluded from coverage. If any of the Covered Risks are determined by the Master Servicer to be excluded from coverage, the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either (i) purchase insurance against acceptable to the risks specified Master Servicer in accordance with the Additional Exclusions Servicing Standard and in accordance with the related Loan documents covering such Covered Risks or (ii) provide an a written explanation as to its reasons for failing to purchase such insurance and (C) if insurance. Notwithstanding the related Mortgage Loan is a Specially Serviced Loanforegoing, notify with the written consent of 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 in accordance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by Servicing Standard the Master Servicer pursuant may waive the requirement to clause (B) above. If procure insurance covering any of the Covered Risks if the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that (1) insurance covering any such failure Covered Risks is not an Acceptable Insurance Defaultavailable at a commercially reasonable price, the Special Servicer or (with regard 2) based on information reasonably available to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicerafter due inquiry, as applicable, shall promptly deliver any such conclusions in writing Covered Risks are at that time not commonly insured against for properties similar to the 17g-5 Information Provider for posting to Mortgaged Property and located in or around the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of region in which the ten (10) highest outstanding Stated Principal Balances of all of Mortgaged Property is located unless the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans Loan is greater than $20,000,000. If the Stated Principal Balance of the Loan is greater than $20,000,000, then included in the Trust. During the period that the Master Servicer or 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 is evaluating fails to give a response to the availability Master Servicer as referenced in the second preceding sentence within 10 Business Days of the Master Servicer initially notifying the Special Servicer in writing of such insurance or waiting for a response from request, the Master Servicer shall promptly notify the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of such failure of the Risk Retention Consultation Party, consulting (on a non-binding basis) with Special Servicer to respond to such request. If the Risk Retention Consultation Party pursuant Directing Certificateholder and/or the Special Servicer have not responded to Section 6.08(a), neither the Master Servicer nor within 10 Business Days of the Special notice referenced in the immediately preceding sentence, the Master Servicer will be liable for any loss related to its failure shall determine in accordance with the Servicing Standard whether to require (or not require) the Mortgagor to maintain (or its failure such insurance. If the Master Servicer requires the Mortgagor to maintain) maintain such insurance and will not be in default of its obligations as a result of the Mortgagor fails to maintain such failure and insurance, to the extent such insurance is then reasonably available, the Master Servicer will not itself maintain shall then procure such insurance or cause in accordance with the Servicing Standard and such insurance 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 maintainedthe 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certificates Series 2003-1)

Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage Loans and (other than a Non-to the extent that the Trust Fund has an insurable interest) Specially Serviced Mortgage LoanMortgaged Loans) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (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 maintainshall, consistent with the Servicing Standard, cause to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 be maintained for each Mortgaged Property) shall maintain Property all insurance coverage as is required under the related Mortgage; provided that if and to the extent that any such Mortgage permits the holder thereof any discretion (by way of consent, but only approval or otherwise) as to the insurance coverage that the related Mortgagor is required to maintain, the Master Servicer shall exercise such discretion in a manner consistent with the event Servicing Standard and subject to the Trustee has an insurable interest therein terms of this Section 3.07; and provided further that, if and to the extent that a Mortgage so permits, the related Mortgagor shall be required to exercise its reasonable best efforts to obtain the required insurance coverage from Qualified Insurers and required insurance coverage obtained by the Master Servicer shall be from Qualified Insurers. The cost of any such insurance is available to coverage obtained by either the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates Servicer shall be made with the consent of the Directing Certificateholder (prior a Servicing Advance to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made paid by the Master Servicer (with respect pursuant to Section 3.03. If not required under 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); 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 terms of the Mortgage Loan, provided that, with respect to or the immediately preceding provisoMortgage Loan Documents, the Master Servicer shall Majority Subordinate Certificateholder may request that earthquake insurance be obligated to use efforts consistent with secured for one or more Mortgaged Properties at the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent expense of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesMajority Subordinate Certificateholder. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan Mortgage; provided that is an Excluded Loan as to such party) that all such insurance is 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 determinationobtained from Qualified Insurers. All Insurance Policies such insurance policies maintained by the Master Servicer or the Special Servicer shall (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 Loans); (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Propertiesii) or to shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), 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 the REO Property, as applicable, and or (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, ; (ivv) shall 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 shall include such other insurance, including, to the first proviso extent available at commercially reasonable rates, earthquake insurance, where applicable, as required under the applicable Mortgage or other Mortgage Loan Documents; (vii) 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 the second sentence of this Section 3.07(a), each case such insurance shall be issued by a Qualified Insurer an insurer authorized under applicable law to issue such Insurance Policiesinsurance. Notwithstanding the foregoing, the Special Servicer shall not be required to obtain, and shall not be in default hereunder for failing to obtain, any insurance for an REO Property that was previously required of the Mortgagor under the related Mortgage if (a) such insurance is not available at any 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 (c) subject to the rights of and consultation with the Controlling Class Representative, such insurance is not available at commercially reasonable rates and the subject hazards are not 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 Master Servicer or the Special Servicer under any such Insurance Policies 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 Servicing Standard and the provisions terms of the related Mortgage Loan documentsand the Servicing Standard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

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) The Each of the Master Servicer (with respect to in the case of Mortgage Loans and the Serviced Whole Loan (other than a Specially Serviced Mortgage Loans and Non-Serviced Mortgage LoanLoans)) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-solely in the case of Specially Serviced Mortgaged PropertiesMortgage Loans) shall maintain, use reasonable efforts to the extent required by the terms cause each Mortgagor to maintain in respect of the related Mortgage Loan documents, Mortgaged Property 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 such insurance coverage is an Acceptable Insurance Default (and except available at commercially reasonable terms as provided in the next sentence with respect to determined by the Master Servicer or the Special Servicer, as the case may be). 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, as applicable, and, if available, can be obtained at commercially reasonable rates. Any provided that any such determination that such insurance coverage is not available or not available at commercially reasonable rates terms shall be made with consented to by the consent Majority Certificateholder of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced LoanControlling Class); 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, or the Special Servicer, as applicableappropriate, 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, provided that, with respect Standard. If a Mortgagor fails to the immediately preceding provisomaintain such insurance, the Master Servicer (at the direction of the Special Servicer in the case of a Specially Serviced Mortgage Loan or REO Loan) shall be obligated (to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (extent available at commercially reasonable terms as determined by the Master Servicer (with respect Servicer, which shall be entitled to a Non-Specially Serviced Loan) rely on an opinion of counsel or insurance consultants in making such determination, provided that, subject to the Special Servicer (with respect Servicing Standard, such final determination shall be consented to a Specially Serviced Loan) with by the consent Majority Certificateholder of the Directing Certificateholder Controlling Class) obtain such insurance (unless which may be through a Control Termination Event has occurredmaster or single interest policy) and after consultation the cost (including any deductible relating to such insurance and any out of pocket cost incurred by the Special Master Servicer with in obtaining advice of counsel or insurance consultants) of such insurance (or in the Risk Retention Consultation Party 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 6.08(a3.05(a) (or 3.05(e). If the Master Servicer or Special Servicer, as the case may be, determines in each case, other than accordance with respect to any Excluded Loan as to such party)) and only in the event preceding provisions of this paragraph that the Trustee has an insurable interest therein and such applicable insurance is not available to at commercially reasonable terms, the Master Servicer or the Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. The Master Servicer shall notify the Majority Certificateholder of the Controlling Class and the 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 3.15(a) and the costs Rating Agencies 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 determination. If at any time a Mortgaged Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that serviced hereunder is located in an Excluded Loan area identified in the Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as to having special flood hazards or it becomes located in such party) that area by virtue of remapping conducted by such agency (and flood insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interesthas been made available), 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-a Specially Serviced Mortgage Loan), including any related Serviced Companion Loanthe Special Servicer) shall, other than REO Properties) or if and 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 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 Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection 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 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 Collection 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 extent 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 3.14(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 Collection 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 (other than a Non-Serviced 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 requires the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring permits 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure mortgagee to require the Mortgagor to do so, use reasonable efforts to cause the related 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 its failure to maintain) such insurance and will not be in default the National Flood Insurance Reform Act of its obligations 1994, as a result of such failure and amended, unless otherwise specified by the Master Servicer will not itself maintain such insurance related Mortgage Loan or cause such insurance to be maintained.Serviced 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) The Master Servicer (with respect shall cause to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and the Special Servicer (with respect to REO Properties other than any Non-Serviced be maintained for each Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan 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 the Special Servicer, as the case may be). 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 Property all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein ; provided that if and such insurance is available to the Master Servicer or the Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and 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) and, after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made 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 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 Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any such Mortgage permits the holder thereof any discretion (by way of consent, approval or otherwise) as to dictate to the Mortgagor the insurance coverage that the related Mortgagor is required to be maintained on such Mortgaged Propertymaintain, the Master Servicer orshall exercise such discretion in a manner consistent with the Servicing Standard; and provided further that, with respect if and to REO Propertythe extent that a Mortgage so permits, the related Mortgagor shall be required to obtain the 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, unless required or permitted to be required under the related Mortgage Loan, in which case the Master Servicer or Special Servicer, as applicable, shall impose or maintainuse reasonable efforts to enforce such obligation, so long as applicable, such insurance requirements as are enforcement is consistent with the Servicing 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 shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred) and after consultation by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) 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. The Master Servicer and the 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 ratesStandard. Subject to Section 3.15(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 paragraph3.17(a), the Special Servicer shall maintain also cause to be maintained for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless the Special Servicer determines with the consent 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 qualification, downgrading or withdrawal of the Directing Certificateholder (prior ratings then assigned to the occurrence and continuance of a Control Termination Event) and after consultation Certificates, as evidenced in writing by the Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that Rating Agencies. All such insurance is policies shall contain (if they insure against loss to property and do not available at commercially reasonable rates or that the Trustee does not have relate to 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 (iREO Property) 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 LoanLoans), including any related Serviced Companion Loan, other than REO Properties) or to and shall be in the name of the Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name on behalf of the Trustee (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 each case such policy insurance 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 an insurer authorized under applicable law to issue such Insurance Policiesinsurance. The cost of any such insurance shall be payable out of amounts on deposit in the related REO Account, or, if the amount on deposit therein is insufficient, the Special Servicer shall follow the procedures set forth in Section 3.01 to request the Master Servicer to make a Servicing Advance with respect to such costs. Any amounts collected by the Master Servicer or the Special Servicer under any such Insurance Policies 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 the terms of the related Mortgage and in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documentsStandard) shall be deposited in the Collection 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 costs cost incurred by the Master Servicer or the Special 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 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 Collection Account) and will be charged to the related Mortgagor and (ii) insurance shall not, for purposes of hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any)Loan, 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 3.14(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 Collection 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 (other than a Non-Serviced 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 interests, the Master Servicer shall, 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; provided that the Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies 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) if the related Mortgage Loan is a Specially Serviced Loan, 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 under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. If the Master Servicer (with respect to a Non-Specially Serviced Loan) or the Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, the Special Servicer (with regard to such determination made by 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 Master Servicer and the Special Servicer (at the 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 the Master Servicer) in determining whether Additional Exclusions exist. Furthermore, the Master Servicer or the Special Servicer, as applicable, 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 Master Servicer or the Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither the Master Servicer nor the Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure 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.

Appears in 1 contract

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

Draft better contracts in just 5 minutes Get the weekly Law Insider newsletter packed with expert videos, webinars, ebooks, and more!