Common use of P&I Advances Clause in Contracts

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-3)

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans Loans, other than a Mortgage Loan included in the Serviced a Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan (or, with respect to the 1901 Research Boulevard Whole Loan, on each only the 1901 Research Boulevard Mo▇▇▇▇▇▇ ▇▇▇▇), ▇▇ ▇▇▇▇ ▇aster Servicer Remitta▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇r time in the case of such Whole Loan for which the Master Servicer Remittance Datemay have an obligation to make a P&I Advance hereunder on a Fashion Show Mall Non-Securitized Note not held by the Trust pursuant to the related Intercreditor Agreement, the Master Servicer shall either (i) deposit into the Serviced related Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced such Whole Loan, (ii) apply amounts held in the Serviced related Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced related Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder any Companion Loan Noteholder under any Intercreditor Agreement) to make such P&I Advances. In connection with the obligation of the Master Servicer to make P&I Advances with respect to the Fashion Show Mall Securitized Notes following a monetary event default or other material event of default under the related Mortgage Loan, the Master Servicer shall make such P&I Advances in an amount equal to the entire scheduled delinquent Monthly Payment or Assumed Monthly Payment due or deemed due, as the case may be, with respect to the Fashion Show Mall Securitized Notes. In addition, the Trustee's obligations to make P&I Advances with respect to the Fashion Show Mall Mortgage Loan should the Master Servicer fail in its obligation to do so shall be made in the manner set forth in the second preceding sentence. Any amounts held in the Certificate Account or if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). The Master Servicer shall not be required to make any P&I Advances with respect to any Fashion Show Mall Non-Securitized Note or the 1901 Research Boulevard B Note. If, as of 3:00 p.m., New York City time, on any Master Servicer ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note Ba Companion Loan) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or made, the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the The Trustee shall not be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced a Whole Loan is involved, out of general collections on deposit in the Serviced related Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced a Whole Loan is involved are deposited into the Serviced related Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder any Companion Loan Noteholder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note Brelated Companion Loans, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans; provided that interest on P&I Advances made with respect to any Companion Loan may be paid solely, pursuant to clauses (i), (ii) and (iii) above, from Default Charges or other collections received by the Trust on or in respect of such Companion Loan included in such Whole Loan. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) Subject to Section 4.03(c), any P&I Advance made in respect of the Fashion Show Mall Whole Loan shall be made only to the notes that are then included in a securitization or a collateralized debt obligation in which interests therein are issued or created (each, a "Fashion Show Mall Securitized Note"). If any proceeds of the Fashion Show Mall Whole Loan are received or collected after expenses that are allocable under the related Intercreditor Agreement to a Fashion Show Mall Non-Securitized Note have been paid out of one or more P&I Advances in respect of one or more Fashion Show Mall Securitized Notes, any such proceeds that are allocable pursuant to the related Intercreditor Agreement to such Non-Securitized Note shall be applied first to reimburse the related holder or holders of such Securitized Note or Notes for such expense until such holder or holders have been reimbursed in full (in accordance with the priorities set forth in the related Interceditor Agreement) prior to any such proceeds being allocated to the holder of such Non-Securitized Note.

Appears in 1 contract

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

P&I Advances. (a) On or before 1:00 p.m., New York City time, on each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loanshall, subject to Section 4.03(c), either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the Certificate Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of such P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make such P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Collection Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Collection Account or if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances pursuant to the preceding sentence (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Collection Account or, if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). Unless and until the [Separately Serviced Mortgage Loan] Loan Group or any [Separately Serviced Mortgage Loan] REO Property is being serviced and administered in accordance with Article XII, all P&I Advances with respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan are required to be made by the [Separately Serviced Mortgage Loan] Master Servicer (or in the event the [Separately Serviced Mortgage Loan] Master Servicer fails to do so, and if the [Other CMBS Series PSA] is the [Separately Serviced Mortgage Loan] Servicing Agreement, by the [Other CMBS Series] Trustee), pursuant to, and as and when required by, a [Separately Serviced Mortgage Loan] Servicing Agreement. If, as of 3:00 1:00 p.m., New York City time, on any Master Servicer Remittance Date, neither the [Separately Serviced Mortgage Loan] Master Servicer nor any other party under the [Separately Serviced Mortgage Loan] Servicing Agreement shall have made the portion of any P&I Advance required to be made pursuant to a [Separately Serviced Mortgage Loan] Servicing Agreement that is allocable to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan (and shall not have delivered to the Master Servicer an officer's certificate and documentation related to a determination of nonrecoverability of a P&I Advance as contemplated by a [Separately Serviced Mortgage Loan] Servicing Agreement), then (subject to Section 4.03(c) below) the Master Servicer shall make the portion of such P&I Advance that was required to be, but was not, made by the [Separately Serviced Mortgage Loan] Master Servicer or any other party under a [Separately Serviced Mortgage Loan] Servicing Agreement by such Master Servicer Remittance Date pursuant to the [Separately Serviced Mortgage Loan] Servicing Agreement and that is allocable to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan. If the Master Servicer fails to make any such P&I Advance on the related Master Servicer Remittance Date, then the Trustee shall make such P&I Advance on the related Distribution Date in accordance with the last paragraph of this Section 4.03(a). If the Master Servicer shall not have received, by 1:00 p.m. (New York City time) on any Master Servicer Remittance Date, any remittance required to be made under a [Separately Serviced Mortgage Loan] Servicing Agreement with respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan on or before such date in the subject calendar month (whether in the form of a P&I Advance or the pass-through of collections), then the Master Servicer shall, subject to a determination of recoverability, advance the amount of such required remittance on such Master Servicer Remittance Date insofar as such remittance constitutes or relates to a Monthly Payment or Assumed Monthly Payment with respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan. Such advance shall be deemed to be a P&I Advance for all purposes hereunder; provided that no interest shall accrue with respect to such P&I Advance pursuant to Section 4.03(d) so long as the required remittance is received by the Master Servicer on such Master Servicer Remittance Date in time for the Master Servicer to reinvest the funds from such remittance. If, as of 1:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) any Mortgage Loan or successor REO Loan on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to Section 4.03(c)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted on such date, then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possibleServicer, but in any event before 4:00 5:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business 11:00 a.m. (New York City time) on such Master Servicer Remittance the related Distribution Date, then (i) the Trustee, unless the Trustee it determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee made, shall make, by 11:00 a.m. on (from its own funds) deposit in the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, Account the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.Date. (b) The aggregate amount of P&I Advances to be made in by the Master Servicer with respect of to the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans Mortgage Pool for any Distribution Date shall equal, (subject to subsection (cSection 4.03(c) belowbelow and, in the case of the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, further subject to the second paragraph of Section 4.03(a) above) shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of any related Master Servicing Fees that were Fees, due or deemed due, as the case may be, in respect thereof of the Serviced Mortgage Loans (including Serviced Mortgage Loans that are Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any successor REO Loans on their respective Due Dates during in the related Collection Period and that were calendar month in which such Distribution Date occurs, in each case to the extent such amount was not paid by or on behalf of the related Mortgagors Borrower or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance DateDetermination Date in such calendar month; provided that that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, Loan in the event of subsequent delinquencies thereonMortgage Pool, then the interest portion of the any P&I Advance required to be made in respect of such Required Appraisal Serviced Loan for the related Distribution Date during any calendar month shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for that would otherwise be required to be made in respect of such Required Appraisal Serviced Loan for during such Distribution Date calendar month without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to as of the commencement of such Distribution Datecalendar month, net of the related Appraisal Reduction Amount, if any, and the denominator of which is shall equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to as of the commencement of such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premiumcalendar month. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or (or, if applicable, the Trustee or any Fiscal Agent) that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination shall be made by the Special Servicer, such Person in its reasonable judgment and shall be evidenced by an Officer's Certificate delivered promptly (to the Depositor, to the Special Servicer, to the Controlling Class Representative and, in any event, in the case of a proposed P&I Advance if made by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), on or before the Depositor, date on which the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan proposed P&I Advance is involvedto be made), setting forth the basis for such determination, together with accompanied (such determination is prior to in the liquidation case of the related Loan or REO PropertyControlling Class Representative and otherwise upon request) by a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been Property performed within the 12 months preceding such determinationdetermination by a Qualified Appraiser, if available, and further accompanied (in the case of the Controlling Class Representative and otherwise upon request) by any other information information, including engineers' reports, environmental surveys or similar reports, that the Master Servicer or the Special Servicer Person making such determination may have obtained and that supports support such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee any Fiscal Agent shall be entitled to conclusively rely on any nonrecoverability determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance. With respect to P&I Advances on the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, and the Master Servicer and the Trustee shall be entitled to conclusively rely on any nonrecoverability determination of nonrecoverability that may have been made by the Special [Separately Serviced Mortgage Loan] Master Servicer or any other party with advancing obligations under a [Separately Serviced Mortgage Loan] Servicing Agreement with respect to a particular P&I Advance Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Mortgage Loans and Administered REO Properties as such party required to make P&I Advances may reasonably request. In the case of Specially Serviced Loansany Cross-Collateralized Mortgage Loan, any determination regarding whether any related P&I Advance constitutes or would constitute a Nonrecoverable P&I Advance shall take into account the cross-collateralization of the related Cross-Collateralized Group. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereofThe Master Servicer, the Master Servicer Trustee and the Trustee any Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of with its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in if the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by prior to the Master Servicerend of the grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding after the end of that grace period). Such interest will with respect to any P&I Advance shall be paidpayable: (i) first, in accordance with Section 3.05(a) and/or Section 1.04, out of any Default Charges collected (including, in the case of the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, by the [Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) with respect to the particular Mortgage Loan or REO Loan as set forth in Section 3.27to which such P&I Advance was made; and second(ii) then, at any time coinciding with or following the reimbursement of after such P&I AdvanceAdvance is reimbursed, but only if and to the extent that such Default Charges described in the immediately preceding clause (i) are and have been insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Collection Account. As and to the extent provided by in Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan), the Master Servicer shall reimburse itself itself, the Trustee or the Trusteeany Fiscal Agent, as appropriateapplicable, for any outstanding P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into in the Certificate Account or, if the Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Collection Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been was received as of the related date Master Servicer Remittance Date. The Master Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent the payment as to which such P&I Advance was made. Interest accrued , is received but is being held by or on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect behalf of the related Mortgage Loan, as applicable, during the same Collection Period Master Servicer in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loanssuspense. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

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

P&I Advances. (a) On or before 1:00 p.m., New York City time, on each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loanshall, subject to SECTION 4.03(C), either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the Mortgage Pool for the related Distribution Date, (ii) apply amounts held in the Certificate Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of such P&I Advances to be made; provided PROVIDED that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make such P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Collection Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Collection Account or if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances pursuant to the preceding sentence (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Collection Account or, if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). Unless and until the [Separately Serviced Mortgage Loan] Loan Group or any [Separately Serviced Mortgage Loan] REO Property is being serviced and administered in accordance with ARTICLE XII, all P&I Advances with respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan are required to be made by the [Separately Serviced Mortgage Loan] Master Servicer (or in the event the [Separately Serviced Mortgage Loan] Master Servicer fails to do so, and if the [Other CMBS Series PSA] is the [Separately Serviced Mortgage Loan] Servicing Agreement, by the [Other CMBS Series] Trustee), pursuant to, and as and when required by, a [Separately Serviced Mortgage Loan] Servicing Agreement. If, as of 3:00 1:00 p.m., New York City time, on any Master Servicer Remittance Date, neither the [Separately Serviced Mortgage Loan] Master Servicer nor any other party under the [Separately Serviced Mortgage Loan] Servicing Agreement shall have made the portion of any P&I Advance required to be made pursuant to a [Separately Serviced Mortgage Loan] Servicing Agreement that is allocable to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan (and shall not have delivered to the Master Servicer an officer's certificate and documentation related to a determination of nonrecoverability of a P&I Advance as contemplated by a [Separately Serviced Mortgage Loan] Servicing Agreement), then (subject to SECTION 4.03(C) below) the Master Servicer shall make the portion of such P&I Advance that was required to be, but was not, made by the [Separately Serviced Mortgage Loan] Master Servicer or any other party under a [Separately Serviced Mortgage Loan] Servicing Agreement by such Master Servicer Remittance Date pursuant to the [Separately Serviced Mortgage Loan] Servicing Agreement and that is allocable to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan. If the Master Servicer fails to make any such P&I Advance on the related Master Servicer Remittance Date, then the Trustee shall make such P&I Advance on the related Distribution Date in accordance with the last paragraph of this SECTION 4.03(A). If the Master Servicer shall not have received, by 1:00 p.m. (New York City time) on any Master Servicer Remittance Date, any remittance required to be made under a [Separately Serviced Mortgage Loan] Servicing Agreement with respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan on or before such date in the subject calendar month (whether in the form of a P&I Advance or the pass-through of collections), then the Master Servicer shall, subject to a determination of recoverability, advance the amount of such required remittance on such Master Servicer Remittance Date insofar as such remittance constitutes or relates to a Monthly Payment or Assumed Monthly Payment with respect to the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan. Such advance shall be deemed to be a P&I Advance for all purposes hereunder; PROVIDED that no interest shall accrue with respect to such P&I Advance pursuant to SECTION 4.03(D) so long as the required remittance is received by the Master Servicer on such Master Servicer Remittance Date in time for the Master Servicer to reinvest the funds from such remittance. If, as of 1:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) any Mortgage Loan or successor REO Loan on such date pursuant to this Section 4.03(aSECTION 4.03(A) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I AdvanceAdvance pursuant to SECTION 4.03(C)) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted on such date, then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possibleServicer, but in any event before 4:00 5:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business 11:00 a.m. (New York City time) on such Master Servicer Remittance the related Distribution Date, then (i) the Trustee, unless the Trustee it determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee made, shall make, by 11:00 a.m. on (from its own funds) deposit in the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, Account the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.Date. (b) The aggregate amount of P&I Advances to be made in by the Master Servicer with respect of to the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans Mortgage Pool for any Distribution Date shall equal, (subject to subsection (cSECTION 4.03(C) belowbelow and, in the case of the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, further subject to the second paragraph of SECTION 4.03(A) above) shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of any related Master Servicing Fees that were Fees, due or deemed due, as the case may be, in respect thereof of the Serviced Mortgage Loans (including Serviced Mortgage Loans that are Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any successor REO Loans on their respective Due Dates during in the related Collection Period and that were calendar month in which such Distribution Date occurs, in each case to the extent such amount was not paid by or on behalf of the related Mortgagors Borrower or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance DateDetermination Date in such calendar month; provided that PROVIDED that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, Loan in the event of subsequent delinquencies thereonMortgage Pool, then the interest portion of the any P&I Advance required to be made in respect of such Required Appraisal Serviced Loan for the related Distribution Date during any calendar month shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for that would otherwise be required to be made in respect of such Required Appraisal Serviced Loan for during such Distribution Date calendar month without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is shall equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to as of the commencement of such Distribution Datecalendar month, net of the related Appraisal Reduction Amount, if any, and the denominator of which is shall equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to as of the commencement of such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premiumcalendar month. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or (or, if applicable, the Trustee or any Fiscal Agent) that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination shall be made by the Special Servicer, such Person in its reasonable judgment and shall be evidenced by an Officer's Certificate delivered promptly (to the Depositor, to the Special Servicer, to the Controlling Class Representative and, in any event, in the case of a proposed P&I Advance if made by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), on or before the Depositor, date on which the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan proposed P&I Advance is involvedto be made), setting forth the basis for such determination, together with accompanied (such determination is prior to in the liquidation case of the related Loan or REO PropertyControlling Class Representative and otherwise upon request) by a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been Property performed within the 12 months preceding such determinationdetermination by a Qualified Appraiser, if available, and further accompanied (in the case of the Controlling Class Representative and otherwise upon request) by any other information information, including engineers' reports, environmental surveys or similar reports, that the Master Servicer or the Special Servicer Person making such determination may have obtained and that supports support such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee any Fiscal Agent shall be entitled to conclusively rely on any nonrecoverability determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance. With respect to P&I Advances on the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, and the Master Servicer and the Trustee shall be entitled to conclusively rely on any nonrecoverability determination of nonrecoverability that may have been made by the Special [Separately Serviced Mortgage Loan] Master Servicer or any other party with advancing obligations under a [Separately Serviced Mortgage Loan] Servicing Agreement with respect to a particular P&I Advance Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder with any information in its possession regarding the Specially Serviced Mortgage Loans and Administered REO Properties as such party required to make P&I Advances may reasonably request. In the case of Specially Serviced Loansany Cross-Collateralized Mortgage Loan, any determination regarding whether any related P&I Advance constitutes or would constitute a Nonrecoverable P&I Advance shall take into account the cross-collateralization of the related Cross-Collateralized Group. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereofThe Master Servicer, the Master Servicer Trustee and the Trustee any Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of with its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in if the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by prior to the Master Servicerend of the grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding after the end of that grace period). Such interest will with respect to any P&I Advance shall be paidpayable: first(i) FIRST, in accordance with SECTION 3.05(A) and/or SECTION 1.04, out of any Default Charges collected (including, in the case of the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan, by the [Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) with respect to the particular Mortgage Loan or REO Loan as set forth in Section 3.27to which such P&I Advance was made; and second(ii) THEN, at any time coinciding with or following the reimbursement of after such P&I AdvanceAdvance is reimbursed, but only if and to the extent that such Default Charges described in the immediately preceding CLAUSE (I) are and have been insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Collection Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loanin SECTION 3.05(A), the Master Servicer shall reimburse itself itself, the Trustee or the Trusteeany Fiscal Agent, as appropriateapplicable, for any outstanding P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into in the Certificate Account or, if the Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Collection Account, and in no event shall interest accrue in accordance with this Section 4.03(dSECTION 4.03(D) on any P&I Advance as to which the corresponding Late Collection had been was received as of the related date Master Servicer Remittance Date. The Master Servicer shall not be entitled to Advance Interest on any particular P&I Advance made thereby to the extent the payment as to which such P&I Advance was made. Interest accrued , is received but is being held by or on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect behalf of the related Mortgage Loan, as applicable, during the same Collection Period Master Servicer in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loanssuspense. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

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

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the a Serviced Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Mortgage Loan included in a Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the related Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Mortgage Loan included in such Serviced Whole Loan, (ii) subject to the terms of the related Intercreditor Agreement, apply amounts held in the related Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the related Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B related Companion Loan Holder in the case of a Serviced Whole Loan under any the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None The making of an Advance by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be an Event of Default with respect to the Trustee. For the avoidance of doubt, neither the Master Servicer or nor the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) belowof this Section 4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a Serviced Whole Loan which is a Required Appraisal Serviced Loan, the related Mortgage Loan, as the case may be, for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Mortgage Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, allocable to such Mortgage Loan and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest a Prepayment Premium. With respect to a Mortgage Loan related to a Non-Serviced Whole Loan, if any "Appraisal Reduction Amount" (or similarly defined amount) for such Non-Serviced Whole Loan applicable to such Mortgage Loan under the related Non-Serviced Loan Pooling Agreement exists, the interest portion of the P&I Advance with respect to ARD Loans or such Mortgage Loan shall be reduced to equal the product of (A) the amount of the interest portion of such P&I Advance for such Mortgage Loan without regard to such Appraisal Reduction Amount by (B) a Prepayment Premiumfraction expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount allocable to such Mortgage Loan, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans Loans, other than Mortgage Loans included in the a Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the a Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B related Companion Loan Holder and One Stamford Forum any Controlling Holder Holder, as applicable (if in the case of a Serviced Whole Loan is involvedLoan), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the a Serviced Whole Loan is involved, out of general collections on deposit in the related Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the a Serviced Whole Loan is involved involved, are deposited into the related Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 with respect to: (A) a Serviced Whole Loan which is a Pari Passu Whole Loan shall be payable (unless required to be paid to the One Stamford Forum Note B related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of the pro rata portion of Default Charges collected on or in respect of the Mortgage Loan related to such Serviced Whole Loan during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, to the extent that the Default Charges described in the immediately preceding clause (i) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of such Mortgage Loan's pro rata portion of any other collections that were made on or in respect of allocable to such Mortgage Loan related to such Serviced Whole Loan, and (iii) third, solely with respect to such Serviced Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans, or (B) a Serviced Whole Loan which is an A/B Whole Loan shall be payable (unless required to be paid to the related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Companion Loan, during the 12-month period in which such Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such A/B Whole Loan, and (iv) solely with respect to such A/B Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) With respect to each Whole Loan with a Pari Passu Companion Loan that will not be included in the Trust Fund, if (i) the Master Servicer or any master servicer for a securitization relating to the Pari Passu Companion Loan determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii) notice of such determination has been delivered by the Master Servicer or the Master Servicer receives written notice of such determination by any other master servicer for a securitization relating to the Pari Passu Companion Loan, none of the Master Servicer, the Trustee, the other master servicers or any other party to the related pooling and servicing agreement may make any additional P&I Advance

Appears in 1 contract

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

P&I Advances. (a) On or before 1:00 p.m., New York City time, on each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Account or, if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 1:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213816) 345435-7240 2327 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee Servicer to the Trustee in writing) and by telephone at telephone no. (800▇▇▇) 462▇▇▇-0505 ▇▇▇▇ (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee Servicer to the Trustee in writing) as soon as possible, but in any event before 4:00 3:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or made, the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-1)

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced a Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced related Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Mortgage Loan included in such Whole Loan, (ii) subject to the terms of the related Intercreditor Agreement, apply amounts held in the Serviced related Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced related Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B related Companion Loan Holder in the case of a Whole Loan under any the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee Servicer to the Trustee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None The making of an Advance by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be an Event of Default with respect to the Trustee. For the avoidance of doubt, neither the Master Servicer or nor the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) belowof this Section 4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B related Companion Loan Holder and One Stamford Forum any Controlling Holder Holder, as applicable (if in the Serviced case of a Whole Loan is involvedLoan), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced a Whole Loan is involved, out of general collections on deposit in the Serviced related Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced a Whole Loan is involved are deposited into the Serviced related Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 with respect to: (A) a Whole Loan which is a Pari Passu Whole Loan shall be payable (unless required to be paid to the One Stamford Forum Note B related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Whole Loan during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, to the extent that the Default Charges described in the immediately preceding clause (i) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of such Whole Loan allocable to the related Mortgage Loan, and (iii) third, solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans, or (B) a Whole Loan which is an A/B Whole Loan shall be payable (unless required to be paid to the related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related A/B Companion Loan, during the 12-month period in which such Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such A/B Whole Loan, and (iv) solely with respect to such A/B Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) With respect to each Whole Loan with a Pari Passu Companion Loan that will not be included in the Trust Fund, if (i) the Master Servicer or any master servicer for a securitization relating to the Pari Passu Companion Loan determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii) notice of such determination has been delivered by the Master Servicer or the Master Servicer receives written notice of such determination by any other master servicer for a securitization relating to the Pari Passu Companion Loan, none of the Master Servicer, the Trustee, the other master servicers or any other party to the related pooling and servicing agreement may make any additional P&I Advances with respect to the related Mortgage Loan or the Pari Passu Companion Loan until the Master Servicer has consulted with the other applicable master servicers and they agree that circumstances with respect to the related Whole Loan have changed such that a proposed future P&I Advance would not be a Nonrecoverable Advance (g) None of the Master Servicer or the Trustee shall advance any amount due to be paid by the Class A-MFL Swap Counterparty for distribution to the Class A-MFL Certificates. In addition, for the avoidance of doubt, if funds allocated to payment of interest distributions on the Class A-MFL Regular Interest are insufficient to make all required interest payments on the Class A-MFL Regular Interest, the amount paid to the Class A-MFL Swap Counterparty will be reduced and interest paid by the Class A-MFL Swap Counterparty under the Class A-MFL Swap Contract will be reduced, on a dollar for dollar basis, by an amount equal to the difference between the amount actually paid to the Class A-MFL Swap Counterparty and the amount that would have been paid if the funds allocated to payment of interest distributions on the Class A-MFL Regular Interest had been sufficient to make all required interest payments on the Class A-MFL Regular Interest.

Appears in 1 contract

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

P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loan, either (i) remit to the Trustee for deposit into the Lower-Tier Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Collection Account or the applicable Serviced Whole Loan Collection Account, as applicable, for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, ; provided that such amounts in the applicable Serviced Whole Loan Collection Account shall only be applied up to the related Mortgage Loan's pro rata share of the amounts held therein on such date or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, made by the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I AdvancesServicer. Any amounts held in the Certificate Collection Account or if the any Serviced Whole Loan is involvedCollection Account, the Serviced Whole Loan Custodial Accountas applicable, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Collection Account or, if or the applicable Serviced Whole Loan is involvedCollection Account, the Serviced Whole Loan Custodial Accountas applicable, on or before the next succeeding P&I Advance Determination Date (to the extent not previously replaced through either (x) the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made or (y) the deposit of Monthly Payments collected prior to the expiration of any applicable grace period that ends after the P&I Advance Determination Date in respect of which such P&I Advances were made). IfThe Master Servicer shall notify the Trustee of (i) the aggregate amount of P&I Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances for such Distribution Date, as of 3:00 p.m., on or before the P&I Advance Determination Date. If the Master Servicer fails to make a required P&I Advance by 1:00 p.m. (New York City time, ) on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of make such failure P&I Advance pursuant to a Servicing Officer of the Master Servicer Section 7.06 by facsimile transmission sent to telecopy no. 12:00 noon (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time) on the related Distribution Date, on such in each case unless the Master Servicer Remittance Date. If, after shall have cured such notice, the Trustee does not receive the full amount failure (and provided written notice of such P&I Advances cure to the Trustee) by the close of business 11:00 a.m. (New York City time) on such Master Servicer Remittance Date, then (i) unless Distribution Date or the Trustee determines that such Advance P&I Advance, if made, would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by Advance. Neither the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or nor the Trustee shall be required to make a P&I Advance Advances on the One Stamford Forum Note B.any Companion Loan. (b) The Subject to Sections 4.07(c) and 4.07(e) below, the aggregate amount of P&I Advances to be made in by the Master Servicer with respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equalequal the aggregate of: (i) all Monthly Payments with respect to the Mortgage Loans (in each case, subject net of related Servicing Fees and, in the case of the Desert Passage Loan, net of the servicing fee rate pursuant to the BACM 2006-1 Pooling and Servicing Agreement) other than Balloon Payments, that were due during the related Collection Period and delinquent (or unpaid, pending the expiration of any applicable grace period with respect to any Mortgage Loan having a grace period extending past the P&I Advance Determination Date) as of the close of business on the P&I Advance Determination Date (or not advanced by the Master Servicer or any sub-servicer on behalf of the Master Servicer) and (ii) with respect to each Mortgage Loan that the Master Servicer is servicing and as to which the related Balloon Payment was due during or prior to the related Collection Period and was delinquent (including any applicable grace period) as of the end of the related Collection Period (including any REO Loan as to which the Balloon Payment would have been past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to subsection (c) below, the aggregate obligation of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists to make such P&I Advances is mandatory, and with respect to any Required Appraisal Serviced applicable Mortgage Loan or REO Loan, then, in shall continue until the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of on which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction AmountLiquidation Proceeds or REO Proceeds, if any, and the denominator of which is equal are to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premiumbe distributed. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if the Master Servicer, the Special Servicer or the Trustee, as applicable, determines that such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, the Master Servicer shall not make any P&I Advance to the extent that it has received written notice that the Special Servicer has determined that such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In making such recoverability determination, the Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to (i) give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the Mortgage Loans other than Mortgage Loans included in recovery of which, at the Serviced Whole Loantime of such consideration, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination is being deferred or delayed by the Master Servicer or the Trustee Trustee, as applicable, in light of the fact that it has made proceeds on the related Mortgage Loan are a Nonrecoverable source of recovery not only for the P&I Advance has under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is being or may be deferred or delayed and (ii) consider (among other things) the obligations of the Borrower under the terms of the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as it may have been made modified, to consider (among other things) the related Mortgaged Properties in their "as is" or that any proposed P&I Advancethen current conditions and occupancies, if made, would constitute a Nonrecoverable P&I Advance, or any as modified by such determination made by party's assumptions (consistent with the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, applicable Servicing Standard in the case of a proposed P&I Advance by the Master Servicer and the Special Servicer) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (consistent with the applicable Servicing Standard in the case of the Master Servicer and the Special Servicer) (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. The Master Servicer, no less than five Business Days the Special Servicer and the Trustee, as applicable, shall consider Unliquidated Advances in respect of prior to P&I Advances for purposes of nonrecoverability determinations as if such Unliquidated Advances were unreimbursed P&I Advances. Neither the related Master Servicer Remittance Date) nor Trustee sh▇▇▇ ▇▇▇▇ ▇▇▇ ▇&▇ Advances with respect to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of delinquent amounts due on any Companion Loan. If an Appraisal of the related Mortgaged Property shall not have been obtained within the prior 12 month period (and the Master Servicer and the Trustee shall each request any such appraisal from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or REO Propertyif such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in the good faith determination of the Master Servicer, the Special Servicer or the Trustee, reflect current market conditions, and the Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to such Appraisal, the Master Servicer, the Special Servicer or the Trustee, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out Fund (and, in the case of general collectionsany Serviced Whole Loan, first of the related Serviced B Loan, if any, second, of the related Mortgage Loan, or in the case of a Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their respective outstanding principal balance) and third, to the extent such expense remains unpaid, of the Trust Fund). The Trustee shall be entitled to rely on any Any such determination of nonrecoverability that may have been made by the Master Servicer with respect to or the Trustee that it has made a particular Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance shall be evidenced by a certificate of a Servicing Officer delivered to the Trustee, the Special Servicer and the Depositor and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Master Servicer and the Special Servicer, which in each case sets forth such nonrecoverability determination and the considerations of the Master Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by the Master Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or any Updated Appraisal); provided, however, that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is nonrecoverable and shall deliver to the Master Servicer and the Trustee notice of such determination, together with a certificate of a Servicing Officer and the supporting information described above. Any such determination shall be conclusive and binding on the Master Servicer, the Special Servicer and the Trustee. Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person's determination that a P&I Advance is a Nonrecoverable Advance) and (consistent with the applicable Servicing Standard in the case of the Master Servicer or the Special Servicer) may obtain, at the expense of the Trust Fund (and, in the case of any Serviced Whole Loan, prior to at the expense of the Trust Fund, first of the related Serviced B Loan, if any, and second, to the extent such expense remains unpaid, of the related Mortgage Loan, or in the case of a Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their respective outstanding principal balance)), any analysis, Appraisals or market value estimates or other information for such purposes. Absent bad faith, any such determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. Notwithstanding the above, (i) the Trustee shall be entitled to rely conclusively on any determination of nonrecoverability that may have been made by the Master Servicer or the Special Servicer, as applicable, that a P&I Advance, if made, would be a Nonrecoverable P&I Advance and (ii) the Master Servicer will be entitled to rely conclusively on any nonrecoverability determination of the Special Servicer. The Trustee, in determining whether or not a P&I Advance previously made is, or a proposed P&I Advance, if made, would be, a Nonrecoverable P&I Advance shall be subject to the standards applicable to the Master Servicer hereunder. The Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, shall promptly furnish the Master Servicer and the Trustee with any information in its possession regarding the Specially Serviced Loans and REO Properties as each such party may reasonably request for purposes of making recoverability determinations. (d) In connection with the recovery of any P&I Advance out of the Collection Account pursuant to Section 3.06(b) or any Serviced Whole Loan Collection Account pursuant to Section 3.06(c), the Master Servicer shall be entitled to receive pay itself or the Trustee, as the case may be (in reverse of such order with respect to any Mortgage Loan or REO Property), out of any amounts then on deposit in the Collection Account or the applicable Serviced Whole Loan Collection Account (to the extent amounts therein relate to the Mortgage Loans, taking into account the related Co-Lender Agreement), as applicable, interest at the Reimbursement Advance Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates from the later of the date made or the expiration of any applicable grace period to a Past Grace Period Serviced Loan when made, but not including the date of reimbursement (or remains outstanding when if such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin P&I Advance was made prior to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loanthe end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding (or, in following the case end of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicergrace period). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the The Master Servicer shall reimburse itself or the Trustee, as appropriatethe case may be, for any outstanding P&I Advance made thereby as soon as practicable practicably possible after funds available for such purpose are deposited into in the Certificate Collection Account or, if or the applicable Serviced Whole Loan is involved are deposited into Collection Account. Notwithstanding the Serviced Whole Loan Custodial Accountforegoing, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) firstneither the Master Servicer nor the Trustee shall make an advance for Excess Interest, out of Default Yield Maintenance Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Penalty Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such the amount of any P&I Advance is being reimbursed at the same time or if such P&I Advance with respect to a Mortgage Loan as to which there has been previously reimbursedan Appraisal Reduction will be an amount equal to the product of (i) the amount required to be advanced without giving effect to this proviso and (ii) a fraction, out the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the immediately preceding Determination Date less any Appraisal Reduction Amount applicable to such Mortgage Loan and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage Loans that have been modified shall be calculated on the basis of their terms as modified. The portion of any other collections that were made on or Insurance Proceeds and Net Liquidation Proceeds in respect of a Mortgage Loan or any REO Loan allocable to principal shall equal the Serviced Whole Loan, and (iv) solely with respect to total amount of such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses proceeds minus (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard any portion thereof payable to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part pursuant to this Agreement and (ii) a portion thereof equal to the interest component of the Monthly Payment(s), as accrued at the related Net Mortgage Rate from the date as to which interest was last paid by the Borrower up to but not including the Due Date in the Collection Period in which such proceeds are received; provided, however, in the event that the interest portion(s) of one or more P&I Advances with respect of such Mortgage Loan or REO Loan, as applicable, were reduced as a result of an Appraisal Reduction Event, the amount of the Net Liquidation Proceeds to be applied to interest shall be reduced by the aggregate amount of such reductions and the portion of such Net Liquidation Proceeds to be applied to principal shall be increased by such amount, and if the amount of the Net Liquidation Proceeds to be applied to principal has been applied to pay the principal of such Mortgage Loan or REO Loan in full, any remaining Net Liquidation Proceeds shall then be applied to pay any remaining accrued and unpaid interest of such Mortgage Loan or REO Loan. (e) With respect to the Non-Serviced Mortgage Loan, the Master Servicer shall make its determination that it has made a P&I Advance on such Mortgage Loan that is attributable a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to Past Grace Period such Mortgage Loan in accordance with Section 4.07(a) independently of any determination made by the Other Servicer (or any master servicer with respect to a commercial mortgage securitization holding another pari passu loan related to the Non-Serviced LoansMortgage Loan, if any) under the Other Pooling and Servicing Agreement (or any pooling and servicing agreement with respect to a commercial mortgage securitization holding another pari passu loan related to the Non-Serviced Mortgage Loan, if any). If the Master Servicer determines that part a proposed P&I Advance with respect to the Non-Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to the Non-Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the Other Servicer (and any master servicer with respect to a commercial mortgage securitization holding another pari passu loan related to the Non-Serviced Mortgage Loan, if any) written notice of the P&I Advances that is attributable to Within Grace Period Loans.such det

Appears in 1 contract

Sources: Pooling and Servicing Agreement (COMM 2006-C7 Mortgage Trust)

P&I Advances. (a) On or before 1:00 p.m., New York City time, on each Master Servicer Remittance P&I Advance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loan, either (i), subject to Section 4.03(c) below, remit from its own funds to the Paying Agent for deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Account or, if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or and interest in respect of which such P&I Advances were made). IfIf the Master Servicer does not deposit in the Distribution Account, as of 3:00 p.m., on or before 4:00 p.m. New York City time, on any Master Servicer Remittance P&I Advance Date, the Master Servicer shall not have made any full amount of P&I Advance Advances, if any, required to be made (other than a P&I Advance with in respect to of the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance)Distribution Date, then the Trustee provisions of Sections 7.01 and 7.02 shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.apply. (b) The aggregate amount of P&I Advances to be made by the Master Servicer in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equalshall, subject to subsection (cSection 4.03(c) below, equal the aggregate of all Monthly Scheduled Payments (other than Balloon Payments) and any Assumed Monthly Scheduled Payments, in each case net of related Master Servicing Fees that were Fees, Special Servicing Fees, any Master Servicer Strip and any related Principal Recovery Fees, due or deemed due, as the case may be, in respect thereof of the Mortgage Loans (including, without limitation, Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and any REO Loans on their respective Due Dates during the related Collection Period and that were Period, in each case to the extent such amount was not paid by or on behalf of the related Mortgagors Mortgagor or otherwise collected as of the close of business on the Business Day before related Determination Date; provided that, (i) if the Monthly Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, or if the final maturity on any Mortgage Loan shall be extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment granted or agreed to by the Special Servicer pursuant to Section 3.20, and the Monthly Payment due and owing during the extension period is less than the related Assumed Scheduled Payment, then the Master Servicer Remittance Dateshall, as to such Mortgage Loan only, advance only the amount of the Monthly Payment due and owing after taking into account such reduction (net of related Master Servicing Fees, Master Servicer Strip, Special Servicing Fees and any related Principal Recovery Fees) in the event of subsequent delinquencies thereon; provided (ii) if it is determined that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, with respect to the Distribution Date immediately following the date of such determination and with respect to each subsequent Distribution Date for so long as such Appraisal Reduction Amount exists, the Master Servicer will be required in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance to advance in respect of such Required Appraisal Serviced Mortgage Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) only an amount equal to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date that would otherwise be required without regard to this provisosentence, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution DateMortgage Loan, net of the related such Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan; and (iii) provided further that, if the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan is extended by the Special Servicer in accordance with Section 3.20 and the Loan-to-Value Ratio for such Mortgage Loan at the time of such extension is in excess of 100%, then (unless the Class A-1 Certificates, the Class A-2 Certificates and the Class A-3 Certificates are collectively the Controlling Class or such Mortgage Loan becomes a Required Appraisal Serviced Loan) the interest portion of any P&I Advance that would otherwise be made in respect of such Mortgage Loan immediately prior during the extension period shall be reduced by an amount equal to the product of (i) such Distribution Date; providedinterest portion, furthermultiplied by (ii) a fraction, that the Master Servicer shall not advance Excess Interest numerator of which is the excess, if any, of (A) the then aggregate Stated Principal Balance of the Mortgage Pool, over (B) the then aggregate of the Class Principal Balances of those Classes of REMIC II Regular Certificates (other than the Class IO Certificates) with respect to ARD Loans or a Prepayment Premiuman earlier alphabetical Class designation than the Controlling Class, and the denominator of which is the then aggregate Stated Principal Balance of the Mortgage Pool. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Officers' Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if Depositor on or before the Serviced Whole Loan is involved)related P&I Advance Date, setting forth the basis for such determination, together with (such determination is prior to the liquidation of the any other information, including appraisals, related Loan or REO Property) a copy of an Appraisal Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property or REO PropertyProperties, as the case may beengineers' reports, which shall have been performed within the 12 months preceding such determination, environmental surveys and further accompanied by any other information similar reports that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required consistent with the Servicing Standard and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any Fund, that support such determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced LoansServicer. (d) As and In connection with its recovery of any P&I Advance out of the Certificate Account pursuant to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof), the Master Servicer and the Trustee shall be entitled to receive pay itself, out of any amounts then on deposit in the Certificate Account, interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates from the date made to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in but not including the case date of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer)reimbursement. Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the The Master Servicer shall reimburse itself or the Trustee, as appropriate, for any outstanding P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into in the Certificate Account or, if the Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

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

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced a Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced related Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced such Whole Loan, (ii) apply amounts held in the Serviced related Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced related Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B related Companion Loan Holder in the case of a Whole Loan under any the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee Servicer to the Trustee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None For the avoidance of doubt, neither the Master Servicer or nor the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) belowof this Section 4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling related Companion Loan Holder (if in the Serviced case of a Whole Loan is involvedLoan), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or or, if the Serviced a Whole Loan is involved, out of general collections on deposit in the Serviced related Whole Loan Custodial AccountAccount allocable to the related Mortgage Loan. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced a Whole Loan is involved are deposited into the Serviced related Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, Whole Loan during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of such Whole Loan allocable to the Serviced Whole related Mortgage Loan, and (iviii) third, solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iiiii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-6)

P&I Advances. (a) On or before 2:00 p.m., Houston time, on each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loan, either (i) deposit into the Lower-Tier Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, Advances or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Account or, if the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before the next succeeding P&I Advance Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). IfWith respect to the Pari Passu Loan and the Related Trust Fund Mortgage Loan, as and the Servicing Retained Mortgage Loan and the Servicing Retained Paired Mortgage Loan, P&I Advances will be allocated on the basis specified in the definitions of 3:00 "Appraised Value." The Servicer shall notify the Trustee and the Fiscal Agent and the holder of the Pari Passu Loan (or the servicer designated by such holder) by a certificate of the Servicing Officer of (i) the amount of any Nonrecoverable P&I Advances for such Distribution Date, and (ii) the aggregate amount of P&I Advances for a Distribution Date on or before the P&I Advance Determination Date. If the Servicer fails to make a required P&I Advance by 2:00 p.m., New York City Houston time, on any Master Servicer Remittance Date, the Master Servicer an Event of Default as set forth in clause (a)(i) of Section 7.01 shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (occur and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of make such failure P&I Advance pursuant to a Servicing Officer of Section 7.05, and if the Master Servicer Trustee fails to make such P&I Advance by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possible11:00 a.m., but in any event before 4:00 p.m., New York City Houston time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of Fiscal Agent shall make such P&I Advances that was required Advance pursuant to be, but was not, made Section 7.05 by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event close of Default business, Houston time, on the part of Distribution Date. In the Master Servicer. None of event that the Master Servicer or the Trustee shall be required fails to make a required P&I Advance hereunder, the Paying Agent shall notify the Trustee and the Fiscal Agent of such circumstances by 3:00 p.m. Houston time on the One Stamford Forum Note B.related Servicer Remittance Date. (b) The Subject to Section 4.03(c) and (e) below, the aggregate amount of P&I Advances to be made in by the Servicer with respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, equal the aggregate of of: (i) all Monthly Payments (in each case, net of related Servicing Fees) other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Due Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected delinquent as of the close of business on the Business Day before preceding the Master related Servicer Remittance Date; provided that if Date or, in the case of the Servicing Retained Mortgage Loan not advanced under the Servicing Retained Servicing Agreement and (ii) with respect to each Mortgage Loan as to which the related Balloon Payment was due during or prior to the related Due Period and was delinquent as of the end of the related Due Period (including any REO Loan as to which the Balloon Payment would have been past due), an Appraisal Reduction Amount exists amount equal to the Assumed Scheduled Payment therefor. Subject to subsection (c) below, the obligation of the Servicer to make such P&I Advances is mandatory, and with respect to any Required Appraisal Serviced Mortgage Loan or REO Loan, then, in shall continue until the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in on which the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amountproceeds, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest received in connection with a Liquidation Event with respect thereto are to ARD Loans or a Prepayment Premiumbe distributed. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. . (d) In addition, connection with respect to the Mortgage Loans other than Mortgage Loans included in recovery of any P&I Advance out of the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable Certificate Account pursuant to Section 3.05(a) ), the Servicer shall be entitled to pay itself, the Trustee or the Fiscal Agent and as the case may be (in reverse of such order with respect to any Mortgage Loan), out of general collections on the Mortgage Pool any amounts then on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the Serviced Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates from the date made to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in but not including the case date of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer)reimbursement. Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master The Servicer shall reimburse itself itself, the Trustee or the TrusteeFiscal Agent, as appropriatethe case may be, for any outstanding P&I Advance made thereby as soon as practicable practicably possible after funds available for such purpose are deposited into in the Certificate Account or, if the Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I AdvancesNotwithstanding the foregoing, (i) none of the Master Servicer, the Special Servicer Trustee and the Fiscal Agent shall be required to make an Advance for Excess Interest or Yield Maintenance Charges and (ii) the Trustee shall account for that part amount required to be advanced in respect of the P&I Advances interest portion of any delinquent Monthly Payment or Assumed Scheduled Payment on a Mortgage Loan that is has been subject to an Appraisal Reduction Event will equal, with respect to any Distribution Date and any Mortgage Loan, the amount that would be required to be advanced by the Servicer in respect of interest without giving effect to the Appraisal Reduction less the portion of any Appraisal Reduction Amount attributable to Past Grace Period Serviced Loans, and that part the interest component of the P&I Advances that is attributable such Monthly Payment or Assumed Scheduled Payment with respect to Within Grace Period Loanssuch Mortgage Loan for such Distribution Date.

Appears in 1 contract

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

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans Loans, other than a Mortgage Loan included in the Serviced Whole Loana Loan Pair, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole LoanLoan Pair, on each Master Servicer Remittance DateDate or such earlier time in the case of the Wellbridge A/B Mortgage Loan for which the Master Servicer may have an obligation to make a P&I Advance hereunder on a Wellbridge Securitized Note not held by the Trust pursuant to the Wellbridge Co-Lender Agreement, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Pair Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loansuch Loan Pair, (ii) apply amounts held in the Serviced Whole related Loan Pair Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole related Loan Pair Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder any Companion Noteholder under any Intercreditor Co-Lender Agreement) to make such P&I Advances. In connection with the obligation of the Master Servicer to make P&I Advances with respect to the Wellbridge Securitized Notes following a monetary event default or other material event of default under the Wellbridge A/B Mortgage Loan, the Master Servicer shall make such P&I Advances, first in an amount equal to the entire scheduled delinquent Monthly Payment or Assumed Monthly Payment due or deemed due, as the case may be, with respect to those Wellbridge Securitized Notes which are Wellbridge Senior Notes and shall second make an additional P&I Advance with respect to the Wellbridge Note B in such amount as is required to cover the delinquent interest portion of a Monthly Payment or Assumed Monthly Payment otherwise (i.e., but for the required application following such events of the Monthly Payments or Assumed Monthly Payment first to amounts owed in respect of the Wellbridge Senior Notes pursuant to the terms of the Wellbridge Co-Lender Agreement) that would be due and owing or deemed due and owing under the Wellbridge Note B had the monetary event of default or other material event of default not occurred. In addition the Trustee's or the Fiscal Agent's obligations to make P&I Advances with respect to the Wellbridge Senior Note A-1 and the Wellbridge Note B should the Master Servicer fail in its obligation to do so shall be made to such Wellbridge Notes in the manner set forth in the third preceding sentence. In addition, the right of the Master Servicer, the Trustee and/or the Fiscal Agent to recover amounts made as P&I Advances and interest thereon shall be limited to collections on the Wellbridge A/B Mortgage Loan which are allocable to the Wellbridge Note B as set forth in the Wellbridge Co-Lender Agreement. Any amounts held in the Certificate Account or if a Loan Pair is involved the Serviced Whole related Loan is involved, the Serviced Whole Loan Pair Custodial Account, Account for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into in the Certificate Account or, or if a Loan Pair is involved the Serviced Whole related Loan is involved, the Serviced Whole Loan Pair Custodial Account, Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). The Master Servicer will not be required to make any P&I Advances with respect to any Wellbridge Non-Securitized Note or any CBA B Note. If, as of 3:00 4:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note Ba Companion Loan) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servicn▇▇▇ ▇▇▇▇tee ▇▇▇▇ by the Master Servicer to the Trustee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servicn▇▇▇ ▇▇▇▇tee ▇▇▇▇ by the Master Servicer to the Trustee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee or the Fiscal Agent determines that such Advance would be a Nonrecoverable P&I Advance if made made, the Trustee or the Trustee Fiscal Agent shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required in order to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or Neither the Trustee nor the Fiscal Agent shall be required to make a P&I an Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loana Loan Pair, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loana Loan Pair, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or Servicer, the Trustee or, if applicable the Fiscal Agent that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five (5) Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Fiscal Agent (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and Certificateholder, the One Stamford Forum Note B Holder and One Stamford Forum ES Controlling Holder (if the Serviced Whole ES Component Mortgage Loan is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 twelve (12) months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee and the Fiscal Agent shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee and the Fiscal Agent shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer Servicer, the Trustee and the Trustee Fiscal Agent shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereofPair, the Master Servicer Servicer, the Trustee and the Trustee Fiscal Agent shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole a Loan Pair is involved, involved out of general collections on deposit in the Serviced Whole related Loan Pair Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole LoanLoan Pair, the Master Servicer shall reimburse itself itself, the Trustee or the TrusteeFiscal Agent, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into in the Certificate Account or, if the Serviced Whole a Loan Pair is involved are deposited into in the Serviced Whole related Loan Pair Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole the Wellbridge A/B Mortgage Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement): payable: (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, Wellbridge Note B during the same Collection Period 12-month period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note BWellbridge Senior Notes, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause clauses (i) and (ii) and are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, Wellbridge A/B Mortgage Loan and (iv) solely with respect to such Whole the Wellbridge A/B Mortgage Loan, to the extent that the Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans; provided that interest on P&I Advances made with respect to any Wellbridge Senior Companion Loan may be paid solely, pursuant to clauses (i), (ii) and (iii) above, from Default Charges or other collections received by the Trust on or in respect of the Wellbridge Senior Companion Loans included in the Wellbridge A/B Mortgage Loan. Interest accrued on any P&I Advance made under with respect to a CBA A/B Mortgage Loan under this Section shall be payable (unless required to be paid to any Companion Loan Noteholder under any Co-Lender Agreement): (i) first, out of Default Charges collected on or in respect of the related B Note during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related CBA Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the related CBA Mortgage Loan and (iv) solely with respect to the related CBA Mortgage Loan to the extent that the Default Charges described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or Servicer, the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.or th

Appears in 1 contract

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

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the a Serviced Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Mortgage Loan included in a Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the related Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Mortgage Loan included in such Serviced Whole Loan, (ii) subject to the terms of the related Intercreditor Agreement, apply amounts held in the related Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the related Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B related Companion Loan Holder in the case of a Serviced Whole Loan under any the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee Certificate Administrator shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee Certificate Administrator, on behalf of the Trustee, does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then the Certificate Administrator shall promptly notify the Trustee of such failure no later than 10:00 a.m. (iNew York City time) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or made, the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such Date. Such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. None The making of an Advance by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be an Event of Default with respect to the Trustee. For the avoidance of doubt, neither the Master Servicer or nor the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) belowof this Section 4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a Serviced Whole Loan which is a Required Appraisal Serviced Loan, the related Mortgage Loan, as the case may be, for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Mortgage Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, allocable to such Mortgage Loan and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. With respect to a Mortgage Loan related to a Non-Serviced Whole Loan, if any "Appraisal Reduction Amount" (or similarly defined amount) for such Non-Serviced Whole Loan applicable to such Mortgage Loan under the related Non-Serviced Loan Servicing Agreement exists, the interest portion of the P&I Advance with respect to such Mortgage Loan shall be reduced to equal the product of (A) the amount of the interest portion of such P&I Advance for such Mortgage Loan without regard to such Appraisal Reduction Amount by (B) a fraction expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount allocable to such Mortgage Loan, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans Loans, other than Mortgage Loans included in the a Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the a Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Certificate Administrator (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling related Companion Loan Holder (if in the Serviced case of an A/B Whole Loan is involvedLoan), as applicable, setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the a Serviced Whole Loan is involved, out of general collections on deposit in the related Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the a Serviced Whole Loan is involved involved, are deposited into the related Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 with respect to: (A) a Serviced Whole Loan which is a Pari Passu Whole Loan shall be payable (unless required to be paid to the One Stamford Forum Note B related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of the pro rata portion of Default Charges collected on or in respect of the Mortgage Loan related to such Serviced Whole Loan during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, to the extent that the Default Charges described in the immediately preceding clause (i) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of such Mortgage Loan's pro rata portion of any other collections that were made on or in respect of allocable to such Mortgage Loan related to such Serviced Whole Loan, and (iii) third, solely with respect to such Serviced Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans, or (B) a Serviced Whole Loan which is an A/B Whole Loan shall be payable (unless required to be paid to the related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Companion Loan, during the 12-month period in which such Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such A/B Whole Loan, and (iv) solely with respect to such A/B Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) With respect to each Whole Loan with a Pari Passu Companion Loan that will not be included in the Trust Fund, if (i) the Master Servicer or any master servicer for a securitization relating to the Pari Passu Companion Loan determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii) notice of such determination

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2008-Ls1)

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans Loans, other than a Mortgage Loan included in the Serviced Whole Loana Loan Pair, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole LoanLoan Pair, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole related Loan Pair Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loansuch Loan Pair, (ii) apply amounts held in the Serviced Whole related Loan Pair Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole related Loan Pair Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder any Companion Noteholder under any Intercreditor Co-Lender Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced Whole a Loan Pair is involved, the Serviced Whole related Loan Pair Custodial Account, Account for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, or if the Serviced Whole a Loan Pair is involved, the Serviced Whole related Loan Pair Custodial Account, Account on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). The Master Servicer will not be required to make any P&I Advances with respect to the CBA B Note or the 17 State Street B Note. If, as of 3:00 4:00 p.m., New York City time, on any Master Servicer ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note Ba Companion Loan) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or made, the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or the The Trustee shall not be required to make a P&I an Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loana Loan Pair, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loana Loan Pair, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or Servicer, the Special Servicer, or, if applicable, the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and Certificateholder, the One Stamford Forum Note B Holder and One Stamford Forum CC Controlling Holder (if the Serviced Whole CC Component Mortgage Loan is involved), setting forth the SS Controlling Holder (if the SS Component Mortgage Loan is involved), the UH Controlling Holder (if the UH Component Mortgage Loan is involved), the CBA B Noteholder (if the CBA A/B Loan is involved), and the 17 State Street B Noteholder (if the 17 State Street A/B Loan is involv▇▇), ▇▇▇▇▇▇▇ ▇▇▇▇h the basis for such determination▇▇▇▇▇▇▇▇▇▇▇▇▇, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and Servicer, the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereofPair, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole a Loan Pair is involved, out of general collections on deposit in the Serviced Whole related Loan Pair Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole LoanLoan Pair, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced Whole a Loan Pair is involved are deposited into the Serviced Whole related Loan Pair Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole A/B Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder any Companion Loan Noteholder under any Intercreditor Co-Lender Agreement): (i) first, out of Default Charges collected on or in respect of the related B Note during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced Whole Loan, related Mortgage Loan and (iv) solely with respect to such Whole Loan, the related Mortgage Loan to the extent that the Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances P&I Advance has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans.

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mort. Pass Thr. Certs SER 2004-3)

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced a Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Mortgage Loan included in a Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial related Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Mortgage Loan included in such Whole Loan, (ii) subject to the terms of the related Intercreditor Agreement, apply amounts held in the Serviced related Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced related Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B related Companion Loan Holder in the case of a Whole Loan under any the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None The making of an Advance by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be an Event of Default with respect to the Trustee. For the avoidance of doubt, neither the Master Servicer or nor the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) belowof this Section 4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a Whole Loan which is a Required Appraisal Serviced Loan, the related Mortgage Loan, as the case may be, for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Mortgage Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, allocable to such Mortgage Loans and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. With respect to a Mortgage Loan related to a Non-Serviced Whole Loan, if any "Appraisal Reduction Amount" (or similarly defined amount) for such Non-Serviced Whole Loan applicable to such Mortgage Loan under the related Non-Serviced Loan Pooling and Servicing Agreement exists, the interest portion of the P&I Advance with respect to such Mortgage Loan shall be reduced to equal the product of (A) the amount of the interest portion of such P&I Advance for such Mortgage Loan without regard to such Appraisal Reduction Amount by (B) a fraction expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount allocable to such Mortgage Loan, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans Loans, other than Mortgage Loans included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B related Companion Loan Holder and One Stamford Forum any Controlling Holder Holder, as applicable (if in the Serviced case of a Whole Loan is involvedLoan), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced a Whole Loan is involved, out of general collections on deposit in the Serviced related Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced a Whole Loan is involved are deposited into the Serviced related Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 with respect to: (A) a Whole Loan which is a Pari Passu Whole Loan shall be payable (unless required to be paid to the One Stamford Forum Note B related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of the pro rata portion of Default Charges collected on or in respect of the Mortgage Loan related to such Whole Loan during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, to the extent that the Default Charges described in the immediately preceding clause (i) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of such Mortgage Loan's pro rata portion of any other collections that were made on or in respect of allocable to such Mortgage Loan related to such Whole Loan, and (iii) third, solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans, or (B) a Whole Loan which is an A/B Whole Loan shall be payable (unless required to be paid to the related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related A/B Companion Loan, during the 12-month period in which such Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such A/B Whole Loan, and (iv) solely with respect to such A/B Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) With respect to each Whole Loan with a Pari Passu Companion Loan that will not be included in the Trust Fund, if (i) the Master Servicer or any master servicer for a securitization relating to the Pari Passu Companion Loan determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii) notice of such determination has been delivered by the Master Servicer or the Master Servicer receives written notice of such determination by any other master servicer for a securitization relating to the Pari Passu Companion Loan, none of the Master Servicer, the Trustee, the other master servicers or any other party to the related pooling and servicing agreement may make any additional P&I Advances with respect to the related Mortgage Loan or the Pari Passu Companion Loan until the Master Servicer has consulted with the other applicable master servicers and they agree that

Appears in 1 contract

Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-2)

P&I Advances. (a) On or before 1:00 p.m. (New York City time) on each Master Servicer Remittance Date, the each Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the Serviced Whole Loan, either (i) remit to the Trustee for deposit into the Villas Parkmerced Loan REMIC Distribution Account or the Lower-Tier Distribution Account, as applicable, from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in its Collection Account or the Certificate Account applicable Serviced Whole Loan Collection Account, as applicable, for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, ; provided that such amounts in the applicable Serviced Whole Loan Collection Account shall only be applied up to the related Mortgage Loan's pro rata share of the amounts held therein on such date or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any made by such Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced Whole Loan, (ii) apply amounts held in the Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder under any Intercreditor Agreement) to make such P&I AdvancesServicer. Any amounts held in the Certificate applicable Collection Account or if the any Serviced Whole Loan is involvedCollection Account, the Serviced Whole Loan Custodial Accountas applicable, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the applicable Master Servicer's records and replaced by the such Master Servicer by deposit into in the Certificate applicable Collection Account or, if or the applicable Serviced Whole Loan is involvedCollection Account, the Serviced Whole Loan Custodial Accountas applicable, on or before the next succeeding P&I Advance Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). IfEach Master Servicer shall notify the Trustee of (i) the aggregate amount of P&I Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances for such Distribution Date, as of 3:00 p.m., on or before the P&I Advance Determination Date. If the applicable Master Servicer fails to make a required P&I Advance by 1:00 p.m. (New York City time, ) on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of make such failure P&I Advance pursuant to a Servicing Officer of the Master Servicer Section 7.06 by facsimile transmission sent to telecopy no. 12:00 noon (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time) on the related Distribution Date, on such in each case unless the applicable Master Servicer Remittance Date. If, after shall have cured such notice, the Trustee does not receive the full amount failure (and provided written notice of such P&I Advances cure to the Trustee) by the close of business 11:00 a.m. (New York City time) on such Master Servicer Remittance Date, then (i) unless Distribution Date or the Trustee determines that such Advance P&I Advance, if made, would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by Advance. Neither the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer or Servicers nor the Trustee shall be required to make a P&I Advance Advances on the One Stamford Forum Note B.any Companion Loan. (b) The Subject to Sections 4.07(c) and 4.07(e) below, the aggregate amount of P&I Advances to be made in by each Master Servicer with respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equalequal the aggregate of: (i) all Monthly Payments (in each case, subject net of related Servicing Fees) other than Balloon Payments, that were due during the related Collection Period and delinquent as of the close of business on the P&I Advance Determination Date (or not advanced by the applicable Master Servicer or any sub-servicer on behalf of such Master Servicer) with respect to the Mortgage Loans that it is servicing and (ii) with respect to each Mortgage Loan that such Master Servicer is servicing and as to which the related Balloon Payment was due during or prior to the related Collection Period and was delinquent (including any applicable grace period) as of the end of the related Collection Period (including any REO Loan as to which the Balloon Payment would have been past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to subsection (c) below, the aggregate obligation of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided to make such P&I Advances, with respect to the Mortgage Loans that if an Appraisal Reduction Amount exists it is servicing, is mandatory, and with respect to any Required Appraisal Serviced applicable Mortgage Loan or REO Loan, then, in shall continue until the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of on which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction AmountLiquidation Proceeds or REO Proceeds, if any, and the denominator of which is equal are to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premiumbe distributed. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if the applicable Master Servicer, the Special Servicer or the Trustee, as applicable, determines that such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect the applicable Master Servicer shall not make any P&I Advance to the Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee extent that it has made a Nonrecoverable received written notice that the Special Servicer has determined that such P&I Advance has been made or that any proposed P&I Advancewould, if made, would constitute a Nonrecoverable P&I Advance. In making such recoverability determination, the applicable Master Servicer, the Special Servicer and the Trustee, as applicable, will be entitled to (i) give due regard to the existence of any Nonrecoverable Advance or any Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the recovery of which, at the time of such determination made consideration, is being deferred or delayed by the Special ServicerMaster Servicers or the Trustee, shall be evidenced by an Officer's Certificate delivered promptly (andas applicable, in any eventlight of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the P&I Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is being or may be deferred or delayed and (ii) consider (among other things) the obligations of the Borrower under the terms of the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions (consistent with the applicable Servicing Standard in the case of a proposed P&I Advance by the Master Servicers and the Special Servicer) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (consistent with the applicable Servicing Standard in the case of the Master Servicers and the Special Servicer) (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. Each Master Servicer, no less than five Business Days prior to the related Master Special Servicer Remittance Date) to and the Trustee (orTrustee, if as applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (shall consider Unliquidated Advances in respect of prior P&I Advances for purposes of nonrecoverability determinations as if the Serviced Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation Unliquidated Advances were unreimbursed P&I Advances. None of the related Loan Master Servicers or REO Property) a copy of Trustee sh▇▇▇ ▇▇▇▇ ▇▇▇ ▇&▇ Advances with respect to delinquent amounts due on any Companion Loan. If an Appraisal of the related Mortgaged Property shall not have been obtained within the prior 12 month period (and the applicable Master Servicer and the Trustee shall each request any such appraisal from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or REO Propertyif such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in the good faith determination of the applicable Master Servicer, the Special Servicer or the Trustee, reflect current market conditions, and the applicable Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to such Appraisal, such Master Servicer, the Special Servicer or the Trustee, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out Fund (and, in the case of general collectionsany Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any, and second, to the extent such expense remains unpaid, of the Trust Fund). The Trustee shall be entitled to rely on any Any such determination of nonrecoverability that may have been made by the applicable Master Servicer with respect to or the Trustee that it has made a particular Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance shall be evidenced by a certificate of a Servicing Officer delivered to the Trustee, the Special Servicer and the Depositor and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the applicable Master Servicer and the Special Servicer, which in each case sets forth such nonrecoverability determination and the considerations of such Master Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by such Master Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or any Updated Appraisal); provided, however, that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is nonrecoverable and shall deliver to the applicable Master Servicer and the Trustee notice of such determination, together with a certificate of a Servicing Officer and the supporting information described above. Any such determination shall be conclusive and binding on the applicable Master Servicer, the Special Servicer and the Trustee. Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person's determination that a P&I Advance is a Nonrecoverable Advance) and (consistent with the applicable Servicing Standard in the case of the applicable Master Servicer or the Special Servicer) may obtain, at the expense of the Trust Fund (and, in the case of any Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any, and second, to the extent such expense remains unpaid, of the Trust Fund), any analysis, Appraisals or market value estimates or other information for such purposes. Absent bad faith, any such determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. Notwithstanding the above, (i) the Trustee shall be entitled to rely conclusively on any determination of nonrecoverability that may have been made by the applicable Master Servicer or the Special Servicer, as applicable, that a P&I Advance, if made, would be a Nonrecoverable P&I Advance and (ii) the applicable Master Servicer will be entitled to rely conclusively on any nonrecoverability determination of the Special Servicer. The Trustee, in determining whether or not a P&I Advance previously made is, or a proposed P&I Advance, if made, would be, a Nonrecoverable P&I Advance shall be subject to the standards applicable to the applicable Master Servicer hereunder. The Special Servicer shall promptly furnish the applicable Master Servicer and the Trustee with respect to a particular P&I Advance any information in its possession regarding the case of Specially Serviced LoansLoans and REO Properties as each such party may reasonably request for purposes of making recoverability determinations. (d) As and In connection with the recovery of any P&I Advance out of the applicable Collection Account pursuant to the extent permitted by Section 3.05(a3.06(b) or Section 3.05(f) with respect to a any Serviced Whole Loan or any portion thereofCollection Account pursuant to Section 3.06(c), the each Master Servicer and the Trustee shall be entitled to receive pay itself or the Trustee, as the case may be (in reverse of such order with respect to any Mortgage Loan or REO Property), out of any amounts then on deposit in its Collection Account or the applicable Serviced Whole Loan Collection Account (to the extent amounts therein relate to the Mortgage Loans, taking into account the related Co-Lender Agreement), as applicable, interest at the Reimbursement Advance Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates from the date made to a Past Grace Period Serviced Loan when made, but not including the date of reimbursement (or remains outstanding when if such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin P&I Advance was made prior to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loanthe end of any grace period applicable to the subject delinquent Monthly Payment, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement end of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced Whole Loan is involved, out of general collections on deposit in the Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(fgrace period) with respect to a Whole Loan, the Mortgage Loan that such Master Servicer is servicing. Each Master Servicer shall reimburse itself or the Trustee, as appropriatethe case may be, for any outstanding P&I Advance made thereby as soon as practicable practicably possible after funds available for such purpose are deposited into in its Collection Account or the Certificate Account or, if the applicable Serviced Whole Loan is involved are deposited into the Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under Account with respect to any Whole the Mortgage Loan under this Section 4.03 shall be payable (unless required to be paid to that such Master Servicer is servicing. Notwithstanding the One Stamford Forum Note B Holder under any Intercreditor Agreement): foregoing, (i) firstneither the applicable Master Servicer nor the Trustee shall make an advance for Excess Interest, out of Default Yield Maintenance Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Penalty Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such the amount of any P&I Advance is being reimbursed at the same time or if such P&I Advance with respect to a Mortgage Loan as to which there has been previously reimbursedan Appraisal Reduction will be an amount equal to the product of (i) the amount required to be advanced without giving effect to this proviso and (ii) a fraction, out the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the immediately preceding Determination Date less any Appraisal Reduction Amount applicable to such Mortgage Loan and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage Loans that have been modified shall be calculated on the basis of their terms as modified. The portion of any other collections that were made on or Insurance Proceeds and Net Liquidation Proceeds in respect of a Mortgage Loan or any REO Loan allocable to principal shall equal the Serviced Whole Loan, and total amount of such proceeds minus (ivi) solely with respect to such Whole Loan, any portion thereof payable to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the applicable Master Servicer, the Special Servicer or the Trustee shall account for that part pursuant to this Agreement and (ii) a portion thereof equal to the interest component of the Monthly Payment(s), as accrued at the related Net Mortgage Rate from the date as to which interest was last paid by the Borrower up to but not including the Due Date in the Collection Period in which such proceeds are received; provided, however, in the event that the interest portion(s) of one or more P&I Advances that is attributable with respect of such Mortgage Loan or REO Loan, as applicable, were reduced as a result of an Appraisal Reduction Event, the amount of the Net Liquidation Proceeds to Past Grace Period Serviced Loansbe applied to interest shall be reduced by the aggregate amount of such reductions and the portion of such Net Liquidation Proceeds to be applied to principal shall be increased by such amount, and that part if the amount of the Net Liquidation Proceeds to be applied to principal has been applied to pay the principal of such Mortgage Loan or REO Loan in full, any remaining Net Liquidation Proceeds shall then be applied to pay any remaining accrued and unpaid interest of such Mortgage Loan or REO Loan. (e) Each Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances that is attributable it makes to Within Grace Period Loansthe extent permitted pursuant to Section 3.06 of this Agreement together with any related Advance Interest Amount in respect of such P&I Advances to the extent permitted pursuant to Section 3.06 and each Master Servicer and the Special Servicer each hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Borrowers to the extent permitted by applicable law and the related Mortgage Loan and this Agreement.

Appears in 1 contract

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

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in the a Serviced Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Mortgage Loan included in a Serviced Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the related Serviced Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Mortgage Loan included in such Serviced Whole Loan, (ii) subject to the terms of the related Intercreditor Agreement, apply amounts held in the related Serviced Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the related Serviced Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B related Companion Loan Holder in the case of a Serviced Whole Loan under any the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note B) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee Certificate Administrator, on behalf of the Trustee, does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None The making of an Advance by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be an Event of Default with respect to the Trustee. For the avoidance of doubt, neither the Master Servicer or nor the Trustee shall be required to make a P&I Advance on the One Stamford Forum Note B.any Companion Loan. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) belowof this Section 4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a Serviced Whole Loan which is a Required Appraisal Serviced Loan, the related Mortgage Loan, as the case may be, for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Mortgage Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, allocable to such Mortgage Loan and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. With respect to a Mortgage Loan related to a Non-Serviced Whole Loan, if any "Appraisal Reduction Amount" (or similarly defined amount) for such Non-Serviced Whole Loan applicable to such Mortgage Loan under the related Non-Serviced Loan Servicing Agreement exists, the interest portion of the P&I Advance with respect to such Mortgage Loan shall be reduced to equal the product of (A) the amount of the interest portion of such P&I Advance for such Mortgage Loan without regard to such Appraisal Reduction Amount by (B) a fraction expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount allocable to such Mortgage Loan, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans Loans, other than Mortgage Loans included in the a Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to a Mortgage Loan included in the a Serviced Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer or the Trustee that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), the Certificate Administrator (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the One Stamford Forum Note B related Companion Loan Holder and One Stamford Forum any Controlling Holder (if in the Serviced case of an A/B Whole Loan is involvedLoan), as applicable, setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole Loan or any portion thereof, the Master Servicer and the Trustee shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the a Serviced Whole Loan is involved, out of general collections on deposit in the related Serviced Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the a Serviced Whole Loan is involved involved, are deposited into the related Serviced Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 with respect to: (A) a Serviced Whole Loan which is a Pari Passu Whole Loan shall be payable (unless required to be paid to the One Stamford Forum Note B related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of the pro rata portion of Default Charges collected on or in respect of the Mortgage Loan related to such Serviced Whole Loan during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, to the extent that the Default Charges described in the immediately preceding clause (i) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of such Mortgage Loan's pro rata portion of any other collections that were made on or in respect of allocable to such Mortgage Loan related to such Serviced Whole Loan, and (iii) third, solely with respect to such Serviced Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans, or (B) a Serviced Whole Loan which is an A/B Whole Loan shall be payable (unless required to be paid to the related Companion Loan Holder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Companion Loan, during the 12-month period in which such Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note B, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such A/B Whole Loan, and (iv) solely with respect to such A/B Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) With respect to each Whole Loan with a Pari Passu Companion Loan that will not be included in the Trust Fund, if (i) the Master Servicer or any master servicer for a securitization relating to the Pari Passu Companion Loan determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii) notice of such determination has been delivered by the Master Servicer or the Master Servicer receives written notice of such determination by any other master servicer for a securitization relating to the Pari Passu Companion Loan, none of the Master Servicer

Appears in 1 contract

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

P&I Advances. (a) On each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans (other than the Fashion Show Mall Mortgage Loan, as to which P&I Advances will be made by the Fashion Show Master Servicer pursuant to the Fashion Show Mall Pooling Agreement or by the Trustee pursuant to this Section 4.03(a)) other than a Mortgage Loan included in the Serviced a Whole Loan, either (i) deposit into the Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Certificate Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Certificate Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan (or, with respect to any A/B Whole Loan, only the related Mortgage Loan), on each Master Servicer Remittance Date, the Master Servicer shall either (i) deposit into the Serviced related Whole Loan Custodial Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date on the Serviced such Whole Loan, (ii) apply amounts held in the Serviced related Whole Loan Custodial Account for future distribution in subsequent months in discharge of any such obligation to make P&I Advances, or (iii) make P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made; provided that if Late Collections of any of the delinquent principal and/or interest in respect of which it is to make P&I Advances on any Master Servicer Remittance Date are then on deposit in the Serviced related Whole Loan Custodial Account, the Master Servicer shall use such Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable therefrom and any portion thereof required to be paid to the One Stamford Forum Note B Holder any Companion Loan Noteholder under any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, for future distribution and so used to make P&I Advances (other than the Late Collections of the delinquent principal and/or interest contemplated by the proviso to the preceding sentence) shall be appropriately reflected in the Master Servicer's records and replaced by the Master Servicer by deposit into the Certificate Account or, if the Serviced a Whole Loan is involved, the Serviced related Whole Loan Custodial Account, on or before the next succeeding Determination Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the Master Servicer shall not have made any P&I Advance required to be made (other than a P&I Advance with respect to the One Stamford Forum Note Ba Companion Loan) on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee the requisite Officer's Certificate and documentation related to a determination of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of such failure to a Servicing Officer of the Master Servicer by facsimile transmission sent to telecopy no. (213) 345-7240 (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee Servicer to the Trustee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee stee in writing) as soon as possible, but in any event before 4:00 p.m., New York City time, on such Master Servicer Remittance Date. If, after such notice, the Trustee does not receive the full amount of such P&I Advances by the close of business (New York City time) on such Master Servicer Remittance Date, then (i) unless the Trustee or the Fiscal Agent determines that such Advance would be a Nonrecoverable P&I Advance if made made, the Trustee or the Trustee Fiscal Agent shall make, by 11:00 a.m. on the Distribution Date or in any event by such time as shall be required to make the required distribution on such Distribution Date, the portion of such P&I Advances that was required to be, but was not, made by the Master Servicer on such Master Servicer Remittance Date and (ii) such failure shall constitute an Event of Default on the part of the Master Servicer. None of the Master Servicer Servicer, the Trustee or the Trustee Fiscal Agent shall be required to make a P&I Advance on any Companion Loan or on the One Stamford Forum Note B.CP Component Mortgage Loan Subordinate Component. The parties hereto agree and acknowledge that the Master Servicer shall not be required to make P&I Advances with respect to the Fashion Show Mall Mortgage Loan. The Fashion Show Mall Master Servicer will be required to make P&I Advances with respect to the Fashion Show Mall Mortgage Loan under the Fashion Show Mall Pooling Agreement, or if the Fashion Show Mall Master Servicer fails to make a required P&I Advance with respect to the Fashion Show Mall Mortgage Loan pursuant to the Fashion Show Mall Intercreditor Agreement and the Fashion Show Mall Pooling Agreement, the Fashion Show Mall Trustee shall make such P&I Advance pursuant to the Fashion Show Mall Pooling Agreement by noon, New York City time, on the related Distribution Date unless the Master Servicer or the Fashion Show Mall Master Servicer pursuant to the Fashion Show Mall Intercreditor Agreement and the Fashion Show Mall Pooling Agreement shall have cured such failure (and provided written notice of such cure to the Trustee) by 11:00 a.m. on such Distribution Date. The parties hereto agree and acknowledge that the Trustee shall be required to make P&I Advances with respect to the Fashion Show Mall Mortgage Loan under the following circumstances: If the Fashion Show Mall Master Servicer and/or the Fashion Show Mall Trustee is required to make a P&I Advance with respect to the Fashion Show Mall Mortgage Loan under the Fashion Show Mall Pooling Agreement but neither does so by noon, New York City time, on the related Distribution Date, then the Trustee shall give notice to the Fashion Show Mall Master Servicer, the Fashion Show Mall Special Servicer and/or the Fashion Show Mall Trustee, as the case may be, of such failure. If, as of 1:00 p.m., New York City time, on the related Distribution Date, the Fashion Show Mall Master Servicer or the Fashion Show Mall Trustee shall not have made such P&I Advance, then unless the Trustee or the Fiscal Agent determines that such Advance would be a Nonrecoverable P&I Advance if made, the Trustee or the Fiscal Agent shall make, by 2:00 p.m. on such Distribution Date, such P&I Advance. In connection with any P&I Advance not timely made by the Fashion Show Mall Master Servicer or the Fashion Show Mall Trustee, the Trustee and the Fiscal Agent will not be liable or held responsible for any resulting delay (or claims by DTC resulting therefrom) in the making of any distribution to Certificateholders. In addition, if the Trustee incurs out-of-pocket expenses, despite reasonable efforts to avoid or mitigate such expenses, as a consequence of the Fashion Show Mall Master Servicer or the Fashion Show Mall Trustee failing to make such P&I Advance, the Trustee will be entitled to reimbursement from the Trust Fund. (b) The aggregate amount of P&I Advances to be made in respect of the Loans (including, without limitation, Balloon Loans that are included in the Trust Fund delinquent as to their respective Balloon Payments) and any REO Serviced Loans for any Distribution Date shall equal, subject to subsection (c) below, the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of related Master Servicing Fees payable hereunder, that were due or deemed due, as the case may be, in respect thereof on their respective Due Dates during the related Collection Period and that were not paid by or on behalf of the related Mortgagors or otherwise collected as of the close of business on the Business Day before the Master Servicer Remittance Date; provided that if an Appraisal Reduction Amount exists with respect to any Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Required Appraisal Serviced Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance for such Required Appraisal Serviced Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, and the denominator of which is equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, that the Master Servicer shall not advance Excess Interest with respect to ARD Loans or a Prepayment Premium. (c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the Mortgage Loans other than Mortgage Loans included in a Whole Loan and the Serviced Whole Fashion Show Mall Mortgage Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general collections on the Mortgage Pool on deposit in the Certificate Account. With respect to the Fashion Show Mall Mortgage Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to the Fashion Show Mall Pooling Agreement, the Fashion Show Mall Intercreditor Agreement and/or this Agreement. With respect to a Mortgage Loan included in the Serviced a Whole Loan, Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f). The determination by the Master Servicer Servicer, the Trustee or the Trustee Fiscal Agent that it has made a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any such determination made by the Special Servicer, shall be evidenced by an Officer's Certificate delivered promptly (and, in any event, in the case of a proposed P&I Advance by the Master Servicer, no less than five Business Days prior to the related Master Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby), to the Fiscal Agent (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and Certificateholder, the One Stamford Forum Note B Fashion Show Mall Purchase Option Holder and One Stamford Forum (if the Fashion Show Mall Mortgage Loan is involved), the CP Controlling Holder (if the Serviced CP Component Mortgage Loan is involved), and the related Companion Loan Noteholder(s) (if a Whole Loan is involved), setting forth the basis for such determination, together with (such determination is prior to the liquidation of the related Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO Property, as the case may be, which shall have been performed within the 12 months preceding such determination, and further accompanied by any other information that the Master Servicer or the Special Servicer may have obtained that supports such determination. The Trustee and the Fiscal Agent shall deliver such Officer's Certificate as soon as practicable after its determination that such P&I Advance would be nonrecoverable. If such an Appraisal shall not have been required and performed pursuant to the terms of this Agreement, the Master Servicer may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust out of general collections. The Trustee and the Fiscal Agent shall be entitled to rely on any determination of nonrecoverability that may have been made by the Master Servicer with respect to a particular P&I Advance, and the Master Servicer and the Trustee and the Fiscal Agent shall be entitled to rely on any determination of nonrecoverability that may have been made by the Special Servicer with respect to a particular P&I Advance in the case of Specially Serviced Loans. (d) As and to the extent permitted by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer Servicer, the Trustee and the Trustee Fiscal Agent shall be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (out of its own funds), to the extent that such P&I Advance relates to a Past Grace Period Serviced Loan when made, or remains outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such interest shall begin to accrue when such Serviced Loan becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been received by the Master Servicer). Such interest will be paid: first, out of any Default Charges as set forth in Section 3.27; and second, at any time coinciding with or following the reimbursement of such P&I Advance, out of general collections on the Mortgage Loans and any REO Properties on deposit in the Certificate Account or if the Serviced a Whole Loan is involved, out of general collections on deposit in the Serviced related Whole Loan Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself itself, the Trustee or the TrusteeFiscal Agent, as appropriate, for any P&I Advance made thereby as soon as practicable after funds available for such purpose are deposited into the Certificate Account or, if the Serviced a Whole Loan is involved are deposited into the Serviced related Whole Loan Custodial Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection had been received as of the related date on which such P&I Advance was made. Interest accrued on any P&I Advance made under with respect to any Whole Loan under this Section 4.03 shall be payable (unless required to be paid to the One Stamford Forum Note B Holder any Companion Loan Noteholder under any Intercreditor Agreement): (i) first, out of Default Charges collected on or in respect of the related Mortgage Loan, as applicable, during the same Collection Period in which such P&I Advance is reimbursed, (ii) second, out of Default Charges collected on or in respect of the One Stamford Forum Note Brelated Companion Loans, pro rata during the 12-month period in which such Advance is reimbursed, (iii) third, to the extent that the Default Charges described in the immediately preceding clause (i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such P&I Advance has been previously reimbursed, out of any other collections that were made on or in respect of the Serviced such Whole Loan, and (iv) solely with respect to such Whole Loan, to the extent that Default Charges or other collections described in the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I Advance is being reimbursed at the same time or if such Advances has been previously reimbursed, out of general collections on or in respect of the Mortgage Loans. (e) With regard to such P&I Advances, the Master Servicer, the Special Servicer or the Trustee or the Fiscal Agent shall account for that part of the P&I Advances that is attributable to Past Grace Period Serviced Loans, and that part of the P&I Advances that is attributable to Within Grace Period Loans. (f) Intere

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Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-2)