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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 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 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 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 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. (New 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, 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. Such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of 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 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 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, 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, other than Mortgage Loans included in 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 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 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 related Companion Loan Holder (in the case of an A/B Whole Loan), 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 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 a Serviced Whole Loan is 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 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 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, (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 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 other than a Mortgage Loan included in a 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 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 related Companion Loan One Stamford Forum Note B Holder in the case of a Serviced Whole Loan under the related any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if a the 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 a the 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 Certificate Administrator 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 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. The making None 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 nor or the Trustee shall be required to make a P&I Advance on any Companion Loan.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) of this Section 4.03below, 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 Mortgage 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 Mortgage Required Appraisal Serviced 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 a 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 a 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 Certificate Administrator (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the related Companion Loan One Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (in if the case of an A/B Serviced Whole LoanLoan is involved), 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 a the 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 a the 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 related Companion Loan One Stamford Forum Note B 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 such A/B the Serviced 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 2006-3)

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 a 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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Collection Account or if a Serviced Whole Loan is involved, the related 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 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). 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 with respect to 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 Certificate Administrator 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 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 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 Certificate Administrator, on behalf of the Trustee, 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 11:00 a.m. (New York City time) on the related Distribution Date andDate, then the Trustee, unless the Trustee it determines that such Advance would be a Nonrecoverable P&I Advance if made, the Trustee 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. Such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on any Companion Loan. (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 Loans Mortgage Pool for any Distribution Date shall equal, (subject to subsection (cSECTION 4.03(C) below and, in the case of this Section 4.03the [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 andFees, 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 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 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 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 Mortgage Required Appraisal 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 Mortgage Required Appraisal Loan immediately prior to as of the commencement of such Distribution Datecalendar month, net of the related Appraisal Reduction Amount, if any, allocable to such Mortgage Loan and the denominator of which is shall equal to the Stated Principal Balance of such Required Appraisal Serviced Loan immediately prior to such Distribution Date; provided, further, 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 as 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 commencement 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 Datecalendar 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 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 a 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 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 therebyon or before the date on which the proposed P&I Advance is to be made), the Certificate Administrator (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the related Companion Loan Holder (in the case of an A/B Whole Loan), as applicable, 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 Serviced 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 a Serviced Whole Loan is involved, out of general collections on deposit in the related 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 Serviced 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 a Serviced Whole Loan is involved, are deposited into the related 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 on any P&I Advance made 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 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, received but only if such P&I Advance is being reimbursed at the same time held by or if such P&I Advance has been previously reimbursed, out on behalf 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, (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 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 determinationin suspense.

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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 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 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 Certificate Administrator 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 and Servicer to the Certificate Administrator Trustee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of 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 Mortgage Required Appraisal 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 Mortgage Required Appraisal 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, 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 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 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 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 related Companion Loan Holder and any Controlling Holder, as applicable (in the case of an A/B a Whole Loan), 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 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 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 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 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 such Whole Loan allocable to such the related 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 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, (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 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 determinationdetermination 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 each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans other than a Mortgage Loan included in 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 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 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 Certificate Administrator 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 and Servicer to the Certificate Administrator Trustee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of 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 Mortgage Required Appraisal 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 Mortgage Required Appraisal 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, 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 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 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 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 related Companion Loan Holder (in the case of an A/B a Whole Loan), 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 or, if a Serviced Whole Loan is involved, out of general collections on deposit in the related Serviced 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 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 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 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 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 such Whole Loan allocable to such the related 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, (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 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 2006-6)

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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 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 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 Certificate Administrator 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 and the Certificate Administrator stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator 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 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of 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 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 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, 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, other than Mortgage Loans included in 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 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 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 related Companion Loan Holder and any Controlling Holder (in the case of an A/B Whole Loan), 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 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 a Serviced Whole Loan is 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 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 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, (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 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 determinationdetermination 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 Loans, other than a Mortgage Loan included in a Serviced Whole LoanLoan 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 Mortgage Loan included in a Serviced Whole LoanPair, 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 related 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 Mortgage such Loan included in such Serviced Whole LoanPair, (ii) subject to the terms of the related Intercreditor Agreement, apply amounts held in the related Serviced Whole 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 related Serviced Whole 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 related any Companion Loan Holder in the case of a Serviced Whole Loan Noteholder under the related Intercreditor any 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 Serviced Whole Loan Pair is involved, involved the related 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 Serviced Whole Loan Pair is involved, involved the related 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 a 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 Certificate Administrator 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 and ▇▇▇▇ by the Certificate Administrator 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 and ▇▇▇▇ by the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, 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 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. The making of an Advance by a fiscal agent appointed by Neither 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 nor the Trustee Fiscal Agent shall be required to make a P&I an Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of this Section 4.03below, 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 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 Mortgage Required Appraisal 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 Mortgage Required Appraisal 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, 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 a Serviced Whole LoanLoan 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 a Serviced Whole LoanLoan 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 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 Certificate Administrator Fiscal Agent (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is involved), the related Companion Loan CBA B Note Holder (in if the case of an related CBA A/B Whole LoanMortgage Loan is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is involved), 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 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 Serviced 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 a Serviced Whole Loan Pair is involved, involved out of general collections on deposit in the related Serviced Whole Loan Pair Custodial Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f) with respect to a Serviced 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 a Serviced Whole Loan Pair is involved, involved are deposited into in the related Serviced Whole 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 the Wellbridge A/B Mortgage 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 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): payable: (i) first, out of Default Charges collected on or in respect of the related Companion Loan, Wellbridge Note B 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 LoanWellbridge Senior Notes, as applicable, pro rata during the same Collection Period 12-month period in which such P&I 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 such the Wellbridge A/B Whole Loan, Mortgage Loan and (iv) solely with respect to such the Wellbridge A/B Whole 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. (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 determinationth

Appears in 1 contract

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

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 a 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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 in the Certificate Account or, if 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 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 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 Certificate Administrator shall provide notice of such failure to a Servicing Officer in respect 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 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 related Distribution Date, then the Certificate Administrator provisions of Sections 7.01 and 7.02 shall promptly notify the Trustee of such failure no later than 10:00 a.m. (New 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, 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. Such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on any Companion Loanapply. (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 Loans for any Distribution Date shall equalshall, subject to subsection (cSection 4.03(c) of this Section 4.03below, 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 andFees, if applicableSpecial Servicing Fees, any Non-Serviced Mortgage Loan Primary Servicing Fee payable hereunderMaster Servicer Strip and any related Principal Recovery Fees, that were 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 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) only an amount equal to equal the product of (i) the amount of the interest portion of such P&I Advance for such Mortgage 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 Mortgage Loan immediately prior to such Distribution DateLoan, net of the related such 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, 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; and (iii) provided further that, if the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan immediately prior 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 Loan) the interest portion of any P&I Advance that would otherwise be made in respect of such Mortgage Loan during the extension period shall be reduced by an amount equal to the product of (i) such Distribution Dateinterest portion, multiplied by (ii) a fraction, the 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 an 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 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 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 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 Certificate Administrator (or, if applicable, retained thereby), the Depositor, the Rating Agencies, the Directing Certificateholder and the Depositor on or before the related Companion Loan Holder (in the case of an A/B Whole Loan), as applicableP&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 Serviced 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 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 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 a Serviced Whole Loan is 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 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 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, (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 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 (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 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 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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 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 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 Certificate Administrator 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 and the Certificate Administrator stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of 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 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 Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, if any, allocable to such Mortgage Loan 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, 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, other than Mortgage Loans included in 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 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 related Companion Loan Holder and any Controlling Holder, as applicable (in the case of an A/B a Whole Loan), 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 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 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 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 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 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, (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 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 determinationdetermination 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 each Master Servicer Remittance Date, the Master Servicer shall in the case of all Mortgage Loans Loans, other than a Mortgage Loan included in 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 Whole Loan included in a Serviced (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 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 related any Companion Loan Holder in the case of a Serviced Whole Loan Noteholder under the related 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 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 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). 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 a 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 Certificate Administrator 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 and the Certificate Administrator stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master ServicServi▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of this Section 4.03below, 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 Mortgage Required Appraisal 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 Mortgage Required Appraisal 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, other than Mortgage Loans included in 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 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 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 related Companion Loan Holder (in the case of an A/B Whole Loan), 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 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 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 related any Companion Loan Holder Noteholder 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 related 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 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; 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) With Subject to Section 4.03(c), any P&I Advance made in respect to each of the Fashion Show Mall Whole Loan with a Pari Passu Companion Loan shall be made only to the notes that will not be are then included in the Trust Fund, if (i) the Master Servicer or any master servicer for a securitization relating 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 Pari Passu Companion Loan determines that a proposed P&I Advance, if made, would related Intercreditor Agreement to such Non-Securitized Note shall be a Nonrecoverable P&I Advance applied first to reimburse the related holder or an outstanding P&I Advance is or would be nonrecoverable and (ii) notice holders of such determinationSecuritized 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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 in the Certificate Account or, if 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 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 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 Certificate Administrator 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 and Servicer to the Certificate Administrator Trustee in writing) and by telephone at telephone no. (800▇▇▇) 462▇▇▇-0505 ▇▇▇▇ (or such alternative number provided by the Master Servic▇▇ ▇▇ ▇▇▇ ▇▇▇▇tee and Servicer to the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on 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 Loans for any Distribution Date shall equal, subject to subsection (c) of 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 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 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, 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, other than Mortgage Loans included in 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 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 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 related Companion Loan Holder (in the case of an A/B Whole Loan), 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 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 a Serviced Whole Loan is 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 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 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, (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 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 (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-1)

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 a 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 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 related Companion Loan Holder in the case of a Serviced Whole Loan under the related Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 in the Certificate Account or, if a Serviced Whole Loan is involved, the related 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 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 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 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. (New 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, the Trustee shall makemake such P&I Advance pursuant to Section 7.05, and if the Trustee fails to make such P&I Advance 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 a.m., Houston time, on such Distribution Date, the portion Fiscal Agent shall make such P&I Advance pursuant to Section 7.05 by the close of business, Houston time, on the Distribution Date. In the event that the Servicer fails to make a required P&I Advance hereunder, the Paying Agent shall notify the Trustee and the Fiscal Agent of such P&I Advances that was required to be, but was not, made circumstances by 3:00 p.m. Houston time on the Master Servicer on such Master related Servicer Remittance Date. Such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. 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 nor the Trustee shall be required to make a P&I Advance on any Companion Loan. (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 Loans for any Distribution Date shall equal, subject to subsection (c) of this Section 4.03, 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 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 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 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 Date or, in the case of a the Servicing Retained Mortgage Loan included in a Serviced Whole Loan which is a Required Appraisal Serviced Loan, not advanced under 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 Mortgage Loan for such Distribution Date without regard to this proviso, multiplied by Servicing Retained Servicing Agreement and (ii) a fractionwith 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), expressed as a percentage, the numerator of which is an amount equal to the Stated Principal Balance 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 Mortgage Loan immediately prior to such or REO Loan, shall continue until the Distribution Date, net of Date on which the related Appraisal Reduction Amountproceeds, 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, 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 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 Datedistributed. (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 a Serviced Whole Loan, Nonrecoverable recovery of any P&I Advances shall be reimbursable Advance out of the 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 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 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 related Companion Loan Holder (in the case of an A/B Whole Loan), 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 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 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 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 a Serviced Whole Loan is 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 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 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, (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 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 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 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 Yield Maintenance Charges and (ii) notice the amount required to be advanced in respect of the interest portion of any delinquent Monthly Payment or Assumed Scheduled Payment on a Mortgage Loan that 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 the interest component of such determinationMonthly Payment or Assumed Scheduled Payment with respect to such 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 other than a Mortgage Loan included in 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 related any Companion Loan Holder in the case of a Serviced Whole Loan under the related any Intercreditor Agreement) to make such P&I Advances. Any amounts held in the Certificate Account or if 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 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 a 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 Certificate Administrator 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 and the Certificate Administrator stee in writing) and by telephone at telephone no. (800) 462-0505 (or such alternative number provided by the Master Servic▇▇ ▇▇ Servicer to ▇▇▇ ▇▇▇▇tee and the Certificate Administrator 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 Certificate Administrator, on behalf of the Trustee, 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. (New York City timei) on the related Distribution Date and, unless the Trustee determines that such Advance would be a Nonrecoverable P&I Advance if made, 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. Such Date and (ii) such failure by the Master Servicer shall constitute an Event of Default on the part of the Master Servicer. The making None 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 nor or the Trustee shall be required to make a P&I Advance on 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) of this Section 4.03below, 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 Mortgage 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 Mortgage Required Appraisal Serviced 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 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 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 related Companion Loan Holder(s) and Controlling Holder (in the case of an A/B if a Serviced Whole LoanLoan is involved), 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 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 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 related any 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 related 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 such A/B Serviced 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; 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 Serviced 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) With respect to each Whole Loan with a Pari Passu Companion Loan that will not be included in the Trust Fund, if (i) None of the Master Servicer or the Trustee shall advance any master servicer amount due to be paid by the Class A-SBFL Swap Counterparty for a securitization relating distribution to the Class A-SBFL Certificates. (g) With respect to the Torre Mayor Pari Passu Companion Note A-2 Mortgage Loan, the Master Servicer shall make its determination that it has made a P&I Advance on any such Mortgage Loan determines that is a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would be constitute a Nonrecoverable P&I Advance with respect to such Mortgage Loan in accordance with Section 4.03(c) independently of any determination made in respect of the Torre Mayor Pari Passu Note A-1 by the Torre Mayor Master Servicer. If the Master Servicer determines that a proposed P&I Advance with respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan if made, or an any outstanding P&I Advance is with respect to such Mortgage Loan previously made, would be, or would be nonrecoverable and (ii) is, as applicable, a Nonrecoverable Advance, the Master Servicer shall provide the Torre Mayor Master Servicer written notice of such determination within one Business Day of the date of such determination. If the Master Servicer receives written notice from the Torre Mayor Master Servicer that such master servicer has determined, with respect to the Torre Mayor Pari Passu Note A-1, that any proposed advance of principal and interest with respect to such loan would be, or any outstanding advance of principal and interest is, a nonrecoverable advance of principal and interest, then such determination shall be binding on the Certificateholders and none of the Master Servicer or the Trustee shall make any additional P&I Advances with respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan unless the Master Servicer has consulted with the Torre Mayor Master Servicer and they agree that circumstances with respect to the Torre Mayor Whole Loan have changed such that a proposed future P&I Advance in respect of the Torre Mayor Pari Passu Note A-2 Mortgage Loan would be recoverable; provided, however, that the determination of Torre Mayor Master Servicer shall not be binding on the Certificateholders, and the Master Servicer or the Trustee, as applicable, shall make its own determination of recoverability, in the event that the Torre Mayor Master Servicer is not approved as a master servicer by each of S&P and Moody's. Notwithstanding the foregoing, the Master Servicer shall conti▇▇▇ ▇▇ have the discretion (including if the Torre Mayor Master Servicer determines that any advance of principal and/or interest with respect to the Torre Mayor Pari Passu Note A-1 would be recoverable) provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable P&I Advance. Once such a determination is made by the Master Servicer or the Master Servicer receives written notice of such determination by the Torre Mayor Master Servicer, neither the Master Servicer nor the Trustee shall make any additional P&I Advances with respect to the Torre Mayor Pari Passu Note A-2 Mortg

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Sources: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc. Series 2006-1)