Property Advances. (a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be permitted to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (CSAIL 2016-C6 Commercial Mortgage Trust), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2015-Ubs8), Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof; provided that no Property Advances shall be made with regard to a Subordinate Companion Loan if the related Mortgage Loan is no longer held by the Trust. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of ~~emergency advances~~ Emergency Advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Mortgage Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section ~~11.04~~ 12.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to (1) the affected Serviced Companion Loan Holders or their Companion Loan Holder representatives (and the related master servicer and special servicer under any related Other ~~Master Servicer~~ Pooling and ~~Other Special Servicer~~Servicing Agreement, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, (2) the Trustee (unless it is the Person making the determination), (3) the Controlling Class Representative (prior to the occurrence and continuance of a ~~Consultation~~ Control Termination Event), (4) in the case of a Property Advance with respect to any Serviced Outside Controlled Loan Combination, the related Outside Controlling Note Holder, (5) the Master Servicer (unless it is the Person making the determination), (6) the Special Servicer (unless it is the Person making the determination), and (7) ~~and,~~ the Depositor (if the Trustee is making the determination~~, the Depositor~~), setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. ~~The~~ In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a Property Advance previously made or to be made constitutes or would constitute a Nonrecoverable Advance: (A) any such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries; (B) any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes; (C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Property Advance, if made, would be a Nonrecoverable Advance or that any outstanding Property Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) and, in the case of a Property Advance with respect to a Serviced Outside Controlled Loan Combination, the related Outside Controlling Note Holder notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance); (D) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance~~. The~~ ; (E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 3.20 with respect to the non-recoverability of Property Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; and (F) notwithstanding the foregoing, ~~in determining whether~~ the Trustee may conclusively rely upon any determination by the Master Servicer or ~~not a~~ the Special Servicer that any Property Advance ~~previously~~ would be recoverable (unless a non-recoverability determination has been made isby the other servicer in accordance with clause (E) above which is binding on the Trustee), ~~or a proposed~~ and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any Property ~~Advance, if made,~~ Advance would ~~be, a Nonrecoverable Advance shall use its good faith business judgment~~be recoverable. (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06A(a)(ii) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to ~~a Non-~~an Outside Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Property Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. ~~Once reimbursed, the~~ The Master Servicer ~~shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and~~ shall be entitled to reimbursement ~~with interest thereon. Any such~~ for any Advance made by it at the direction of the Special Servicer, ~~but not reimbursed by~~ together with interest thereon at the ~~Master Servicer~~same time, ~~shall be reimbursable out of the Collection Account~~ in the same manner and to the same extent as ~~are~~ the Master Servicer is entitled with respect to any other Advances made ~~by the Master Servicer~~thereby. (f) Within five (5) Business Days of making an Emergency ~~Advance~~Advance pursuant to the proviso to the penultimate sentence of Section 3.20(e), the Special Servicer shall deliver to the Master Servicer a request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any such unreimbursed Emergency Advances (other than any Emergency Advance determined by the Master Servicer, in accordance with Section 3.20(c) of this Agreement, to be a Nonrecoverable Property ~~Advances~~Advance) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.of

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (UBS Commercial Mortgage Trust 2017-C1), Pooling and Servicing Agreement (CD 2017-Cd4 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2017-P7)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof; provided that no Property Advances shall be made with regard to a Subordinate Companion Loan if the related Mortgage Loan is no longer held by the Trust. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of ~~emergency advances~~ Emergency Advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Mortgage Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section ~~11.04~~ 12.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master ~~Servicer, the Special~~ Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.a

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P4), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-C1), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Trust Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to (1) the affected Serviced Companion Loan Holders or their Companion Loan Holder representatives (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, (2) the Trustee (unless it is the Person making the determination), (3) the Controlling Class Representative (prior to the occurrence and continuance of a CCR Control Termination Event), (4) in the case of a Property Advance with respect to any Serviced Outside Controlled Pari Passu Loan Combination, the related Outside Controlling Note Holder (prior to the occurrence and continuance of a related Outside Consultation Termination Event), (5) the Master Servicer (unless it is the Person making the determination), (6) the Special Servicer (unless it is the Person making the determination), and (7) ~~and,~~ the Depositor (if the Trustee is making the determination~~, the Depositor~~), setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. ~~The~~ In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a Property Advance previously made or to be made constitutes or would constitute a Nonrecoverable Advance: (A) any such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries; (B) any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes; (C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Property Advance, if made, would be a Nonrecoverable Advance or that any outstanding Property Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee, the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) and, in the case of a Property Advance with respect to a Serviced Outside Controlled Pari Passu Loan Combination, the related Outside Controlling Note Holder (prior to the occurrence and continuance of a related Outside Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance); (D) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance~~. The~~ ; (E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 3.20 with respect to the non-recoverability of Property Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; and (F) notwithstanding the foregoing, ~~in determining whether~~ the Trustee may conclusively rely upon any determination by the Master Servicer or ~~not a~~ the Special Servicer that any Property Advance ~~previously~~ would be recoverable (unless a non-recoverability determination has been made isby the other servicer in accordance with clause (E) above which is binding on the Trustee), ~~or a proposed~~ and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any Property ~~Advance, if made,~~ Advance would ~~be, a Nonrecoverable Advance shall use its good faith business judgment~~be recoverable. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06A(a)(ii) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Benchmark 2021-B23 Mortgage Trust), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2015-Gc32), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-Gc29)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof; provided that no Property Advances shall be made with regard to a Subordinate Companion Loan if the related Mortgage Loan is no longer held by the Trust. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of ~~emergency advances~~ Emergency Advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Mortgage Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section ~~11.04~~ 12.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to (1) the affected Serviced Companion Loan Holders or their Companion Loan Holder representatives (and the related master servicer and special servicer under any related Other ~~Master Servicer~~ Pooling and ~~Other Special Servicer~~Servicing Agreement, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, (2) the Trustee (unless it is the Person making the determination), (3) the Controlling Class Representative (prior to the occurrence and continuance of a ~~Consultation~~ Control Termination Event), (4) in the case of a Property Advance with respect to any Serviced Outside Controlled Loan Combination, the related Outside Controlling Note Holder, (5) the Master Servicer (unless it is the Person making the determination), (6) the Special Servicer (unless it is the Person making the determination), and (7) ~~and,~~ the Depositor (if the Trustee is making the determination~~, the Depositor~~), setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.of

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Benchmark 2018-B8 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2018-B7 Mortgage Trust), Pooling and Servicing Agreement (DBGS 2018-C1 Mortgage Trust)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of ~~emergency advances~~ Emergency Advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced~~ Whole Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced~~ Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced~~ Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in ~~this~~ Section ~~3.20(c~~3.20(d). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or ~~Serviced~~ Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. . (d) The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any ~~Serviced~~ Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (de) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (ef) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance~~, and the~~ . The Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement ~~with interest thereon. Any such~~ for any Advance made by it at the direction of the Special Servicer, ~~but not reimbursed by~~ together with interest thereon at the ~~Master Servicer~~same time, ~~shall be reimbursable out of the Collection Account~~ in the same manner and to the same extent as ~~are~~ the Master Servicer is entitled with respect to any other Advances made ~~by the Master Servicer~~thereby. (fg) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section ~~3.20(e~~3.20(f), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within ~~five~~ ten (510) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section ~~3.20(f~~3.20(g), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section ~~3.20(f~~3.20(g), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer ~~determines,~~ determines in ~~accordance with the Servicing Standard,~~ its reasonable judgment that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc19), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc18), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc18)

Property Advances. (a) Except with respect to a the Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section ~~3.20(b) of this Agreement~~3.22(b), the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected~~ the related Companion Loan ~~Holder~~ Representative not less than five ~~(or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two)~~ Business Days’ ' written (facsimile) notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected~~ the related Companion Loan ~~Holder~~ Representative with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s 's determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan or REO Mortgage Loan other than in respect of the Non-Serviced Mortgage Loan or the Companion Loan related thereto is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan ~~Holders~~ Noteholders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee,~~ Trustee and the ~~Special Servicer and any~~ related Companion Loan ~~Holder~~ Representative in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section ~~3.20(c) of this Agreement~~3.22(c), shall pay the amount of such Property Advance in accordance with such information and instructions~~. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement~~. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made constitute a Nonrecoverable Advance, shall be made by such Person in good faith reasonable judgment (i) and in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing ~~Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment~~Standard), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s 's Certificate delivered on or prior to the next Master Servicer Remittance Date to the related Companion Loan ~~Holders~~ Noteholders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the ~~Trust Fund~~Trust, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s 's possession) and any engineers’ ' reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person's determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall ~~use its good faith business judgment~~be subject to the standards applicable to the Master Servicer and the Special Servicer hereunder. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Companion Loan Noteholders (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person's determination, or to be prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer ~~shall~~ may, in its sole discretion, either elect to make such Property Advance or request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s 's right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s 's receipt of such request. ~~The Special Servicer shall have no obligation to make any Property Advance; provided that~~ If the ~~Special Servicer may in its sole discretion elect to make an Emergency Advance,~~ request is timely and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advanceproperly made, the Special Servicer shall ~~deliver~~ be relieved of any obligations with respect to a Property Advance that it so requests the Master Servicer ~~request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and~~ to make (regardless of whether or not the Master Servicer shall ~~be obligated, out of~~ make such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(eAdvance)~~, together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement~~. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2006-Gg8), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2006-Gg8), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2007-Gg10)

Property Advances. (a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination ~~Event~~Event and other than in respect of an Excluded Loan then subject to an Exclusion Period), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made ~~such Emergency Advance at~~ thereby. For the ~~time~~ avoidance of doubt, the Special ~~Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master~~ Servicer shall not be ~~required~~ obligated to ~~reimburse the Special Servicer for~~ make any ~~Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency~~ Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C1 Commercial Mortgage Trust)

Property Advances. (a) Except with respect to a each Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in ~~the case of~~ an emergency ~~advances pursuant to Section 3.20(e) of this Agreement~~situation or on an urgent basis, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a each Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such ~~other~~ party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a each Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a each Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a each Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in ~~this~~ Section ~~3.20(c~~3.20(d). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. . (d) The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (de) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (ef) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a each Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2017-H1), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc23), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc22)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee ~~and any affected Companion Loan Holder~~ not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master ~~Servicer,~~ Servicer and the Trustee ~~and any affected Companion Loan Holder~~ with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and ~~Companion Loan Holders and~~ compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding ~~that~~ the terms of such Mortgage ~~Loan or Serviced Whole Loan so provide~~Loan. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage ~~Loan or Serviced Whole~~ Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to ~~the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan,~~ the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. Furthermore, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Advance, if made, would be a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative notice of such determination, which determination will be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that an Advance constitutes or would constitute a Nonrecoverable Advance). The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) ~~or Section 3.06A~~ of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12)

Property Advances. (a) Except with respect to a the Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of ~~emergency advances~~ Emergency Advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a the Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such ~~other~~ party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a the Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a the Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a the Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in ~~this~~ Section ~~3.20(c~~3.20(d). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. . (d) The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (de) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (ef) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a the Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance~~, and the~~ . The Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement ~~with interest thereon. Any such~~ for any Advance made by it at the direction of the Special Servicer, ~~but not reimbursed by~~ together with interest thereon at the ~~Master Servicer~~same time, ~~shall be reimbursable out of the Collection Account~~ in the same manner and to the same extent as ~~are~~ the Master Servicer is entitled with respect to any other Advances made ~~by the Master Servicer~~thereby. (fg) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section ~~3.20(e~~3.20(f), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within ~~five~~ ten (510) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section ~~3.20(f~~3.20(g), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section ~~3.20(f~~3.20(g), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc21), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc20)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced~~ Whole Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced~~ Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Companion Loan Holder in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced~~ Whole Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such ~~Person (i)~~ Person, in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard ~~and (ii)~~ and, in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any ~~Serviced~~ Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. Furthermore, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Advance, if made, would be a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative notice of such determination, which determination will be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that an Advance constitutes or would constitute a Nonrecoverable Advance). The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06(A) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2012-Gc8), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2012-Gc8)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Trust Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to (1) the affected Serviced Companion Loan Holders or their Companion Loan Holder representatives (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, (2) the Trustee (unless it is the Person making the determination), (3) the Controlling Class Representative (prior to the occurrence and continuance of a Controlling Class Representative Control Termination Event), (4) in the case of a Property Advance with respect to the Boca Hamptons Plaza Portfolio Loan Combination, the Boca Hamptons Plaza Portfolio Controlling Note Holder (prior to the occurrence and continuance of a Boca Hamptons Plaza Portfolio Consultation Termination Event), (5) the Master Servicer (unless it is the Person making the determination), (6) the Special Servicer (unless it is the Person making the determination), and (7) ~~and,~~ the Depositor (if the Trustee is making the determination~~, the Depositor~~), setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. ~~The~~ In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a Property Advance previously made or to be made constitutes or would constitute a Nonrecoverable Advance: (A) any such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries; (B) any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes; (C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Property Advance, if made, would be a Nonrecoverable Advance or that any outstanding Property Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee, the Controlling Class Representative (prior to the occurrence and continuance of a Controlling Class Representative Consultation Termination Event) and, in the case of a Property Advance with respect to the Boca Hamptons Plaza Portfolio Loan Combination, the Boca Hamptons Plaza Portfolio Controlling Note Holder (prior to the occurrence and continuance of a Boca Hamptons Plaza Portfolio Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance); (D) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance~~. The~~ ; (E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 3.20 with respect to the non-recoverability of Property Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; and (F) notwithstanding the foregoing, ~~in determining whether~~ the Trustee may conclusively rely upon any determination by the Master Servicer or ~~not a~~ the Special Servicer that any Property Advance ~~previously~~ would be recoverable (unless a non-recoverability determination has been made isby the other servicer in accordance with clause (E) above which is binding on the Trustee), ~~or a proposed~~ and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any Property ~~Advance, if made,~~ Advance would ~~be, a Nonrecoverable Advance shall use its good faith business judgment~~be recoverable. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06A(a)(ii) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C27), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-Gc27)

Property Advances. (a) [Except with respect to a Non-Serviced Mortgage Loan, ,] the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer [(or, if appropriate, any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) )] to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer [(or such other party under the ~~applicable~~ Other Pooling and Servicing Agreement) )] that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer [(or, if appropriate, any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) )] may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer [(or, if appropriate, a party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) )] that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer [(or, if appropriate, a party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) )] that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced~~ Whole Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced~~ Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced~~ Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or ~~Serviced~~ Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any ~~Serviced~~ Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property [(other than an REO Property related to a Non-Serviced Mortgage Loan), ,] the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

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

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected Companion~~ the Loan Combination Directing Holder (with respect to the Loan Combination, for so long as the Non-Trust Mortgage Interest Holder or its designee is the Loan Combination Directing Holder) not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected Companion~~ the Loan Combination Directing Holder (with respect to the Loan Combination, for so long as the Non-Trust Mortgage Interest Holder or its designee is the Loan Combination Directing Holder) with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Mortgage Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and ~~Companion Loan Holders~~ Non-Trust Mortgage Interest Holder and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced Whole Loan~~the Loan Combination, notwithstanding that the terms of such Mortgage Loan or ~~Serviced Whole~~ the Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee~~Trustee and the Loan Combination Directing Holder (with respect to the Loan Combination, for so long as the ~~Special Servicer and any related Companion~~ Non-Trust Mortgage Interest Holder or its designee is the Loan ~~Holder~~ Combination Directing Holder) in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this ~~Section~~ section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced Whole~~ the Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person in commercially reasonable judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing ~~Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment~~Standard), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the ~~Companion Loan Holders~~ Non-Trust Mortgage Interest Holder (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of ~~any Serviced Whole Loan~~the Loan Combination, the Trustee (unless it is the Person making the determination), the ~~Controlling~~ Subordinate Class Representative (~~prior to the occurrence and continuance of~~ during a Subordinate Control Period or a Collective Consultation ~~Termination Event~~Period), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or the Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its ~~good faith business~~ commercially reasonable judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Non-Trust Mortgage Interest Holder (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be construed to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RBS Commercial Funding Inc.), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected~~ the Whole Loan Directing Holder (with respect to a Whole Loan, for so long as the related Companion Loan Holder or its designee is the related Whole Loan Directing Holder) not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected~~ the related Whole Loan Directing Holder (with respect to a Whole Loan, for so long as the related Companion Loan Holder or its designee is the related Whole Loan Directing Holder) with such information in its possession as the Master Servicer, the Trustee or such ~~Companion~~ Whole Loan Directing Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Mortgage Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced~~ Whole Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced~~ Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee~~Trustee and the related Whole Loan Directing Holder (with respect to a Whole Loan, for so long as the ~~Special Servicer and any~~ related Companion Loan Holder or its designee is the related Whole Loan Directing Holder) in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced~~ Whole Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person in commercially reasonable judgment (or (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any ~~Serviced~~ Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Companion Loan Holders (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be construed to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06(A) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj7), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj7)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Trust Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the affected Serviced Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. Furthermore, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Property Advance, if made, would be a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance. Any non-recoverability determination by the Master Servicer pursuant to this Section 3.20 with respect to the recoverability of Property Advances shall be conclusive and binding on the Trustee. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06A(a)(ii) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc22), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc19)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Trust Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the affected Serviced Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, the Trustee (unless it is the Person making the determination), the ~~Controlling Class Representative~~ Directing Holder (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. ~~The~~ In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a Property Advance previously made or to be made constitutes or would constitute a Nonrecoverable Advance: (A) any such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries; (B) any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes; (C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Property Advance, if made, would be a Nonrecoverable Advance or that any outstanding Property Advance is a Nonrevocerable Advance and may deliver to the Master Servicer, the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Holder notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance); (D) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance~~. The~~ ; (E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 3.20 with respect to the non-recoverability of Property Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; and (F) notwithstanding the foregoing, ~~in determining whether~~ the Trustee may conclusively rely upon any determination by the Master Servicer or ~~not a~~ the Special Servicer that any Property Advance ~~previously~~ would be recoverable (unless a non-recoverablity determination has been made isby the other servicer in accordance with clause (E) above which is binding on the Trustee), ~~or a proposed~~ and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any Property ~~Advance, if made,~~ Advance would ~~be, a Nonrecoverable Advance shall use its good faith business judgment~~be recoverable. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06A(a)(ii) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc26), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc25)

Property Advances. (a) Except with respect to a Non-Serviced ~~Mortgage~~ Trust Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master ~~Servicer,~~ Servicer and the Trustee ~~and any affected Companion Loan Holder~~ not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master ~~Servicer,~~ Servicer and the Trustee ~~and any affected Companion Loan Holder~~ with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced ~~Mortgage~~ Trust Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such ~~other~~ party under the ~~applicable~~ Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced ~~Mortgage~~ Trust Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced ~~Mortgage~~ Trust Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced ~~Mortgage~~ Trust Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding that the terms of such Mortgage ~~Loan or Serviced Whole~~ Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage ~~Loan or Serviced Whole~~ Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to ~~the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan,~~ the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be construed to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) ~~or Section 3.06A~~ of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj9), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj9)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected~~ the Whole Loan Directing Holder (with respect to the Whole Loan, for so long as the Companion Loan Holder or its designee is the Whole Loan Directing Holder) not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected~~ the Whole Loan Directing Holder (with respect to the Whole Loan, for so long as the Companion Loan Holder or its designee is the Whole Loan Directing Holder) with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Mortgage Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan ~~Holders~~ Holder and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced~~ the Whole Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced~~ the Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee~~Trustee and the Whole Loan Directing Holder (with respect to the Whole Loan, for so long as the ~~Special Servicer and any related~~ Companion Loan Holder or its designee is the Whole Loan Directing Holder) in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this ~~Section~~ section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced~~ the Whole Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person in commercially reasonable judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing ~~Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment~~Standard), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan ~~Holders~~ Holder (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of ~~any Serviced~~ the Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or the Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its ~~good faith business~~ commercially reasonable judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Companion Loan Holder (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be construed to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.five

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5)

Property Advances. (a) Except with respect to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO ~~Property~~Property (other than an REO Property related to an Outside Serviced Trust Loan). In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Serviced Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Serviced Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable ~~Advance (but this statement shall not be construed to entitle~~ Advance. Although the Special Servicer may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any Property Advance previously made or to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable or (ii) reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a ~~determination,~~ determination that any Property Advance constitutes or would constitute a Nonrecoverable Advance); provided that this sentence will not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made) would be, or a previously made Advance is, a Nonrecoverable Advance, as described in this Section 3.20. The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Serviced Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced ~~Whole Loan~~Loan Combination, notwithstanding that the terms of such Mortgage Loan or Serviced ~~Whole~~ Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Serviced Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced ~~Whole~~ Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions judgment and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the affected Serviced Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced ~~Whole Loan~~Loan Combination, the Trustee (unless it is the Person making the determination), the ~~Controlling Class Representative~~ Directing Holder (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. ~~The~~ In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a Property Advance previously made or to be made constitutes or would constitute a Nonrecoverable Advance: (A) any such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries; (B) any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes; (C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed Property Advance, if made, would be a Nonrecoverable Advance or that any outstanding Property Advance is a Nonrevocerable Advance and may deliver to the Master Servicer, the Trustee and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Holder notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee (but this statement shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance); (D) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer ~~or the Trustee~~ that a Property Advance is or, if made, would be a Nonrecoverable Advance~~. The~~ ; (E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 3.20 with respect to the non- recoverability of Property Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; and (F) notwithstanding the foregoing, ~~in determining whether~~ the Trustee may conclusively rely upon any determination by the Master Servicer or ~~not a~~ the Special Servicer that any Property Advance ~~previously~~ would be recoverable (unless a non-recoverablity determination has been made isby the other servicer in accordance with clause (E) above which is binding on the Trustee), ~~or a proposed~~ and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any Property ~~Advance, if made,~~ Advance would ~~be, a Nonrecoverable Advance shall use its good faith business judgment~~be recoverable. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section ~~3.06A~~ 3.06A(a)(ii) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to ~~a Non-~~an Outside Serviced ~~Mortgage~~ Trust Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc23)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ Each Master Servicer (or, to the extent provided in Section ~~3.20(b) of this Agreement~~3.24(c), the Trustee) to the extent specifically provided for in this Agreement, shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance hereof with respect to ~~a given Specially~~ the Mortgage Loans or Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) Whole Loans that ~~such requested Property Advance~~ it is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advancesservicing. For purposes of distributions to Certificateholders and ~~Companion Loan Holders and~~ compensation to the Master Servicers, the Special Servicer or the Trustee, Property Advances shall not be considered to increase the ~~principal balance~~ Stated Principal Balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding that the terms of such Mortgage Loan ~~or Serviced Whole Loan~~ so provide. (b) Notwithstanding anything in this Agreement to the contrary, the Special Servicer shall give the applicable Master Servicer not less than five Business Days' written notice with respect to any Property Advance to be made on any Specially Serviced Loan, before the date on which the applicable Master Servicer is required to make such Property Advance with respect to such Specially Serviced Loan or REO Loan; provided, however, that the Special Servicer shall be required to provide the applicable Master Servicer with only two Business Days' written notice in respect of Property Advances required to be made on an urgent or emergency basis (which may include, without limitation, Property Advances required to make tax or insurance payments). In addition, in the event that the Property Advance must be made sooner than the two Business Days referred to in the previous sentence, the Special Servicer may make such Property Advances on an emergency basis with respect to any Specially Serviced Loan or REO Loan. (c) The applicable Master Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it ~~will~~ is to be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section ~~3.20(c) of this Agreement~~3.24(d), shall pay the amount of such Property Advance in accordance with such information and instructions. (d) The Special Servicer shall promptly furnish any party required to make Property Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Property Advances may reasonably request for purposes of making recoverability determinations. Any ~~notice to~~ request by the ~~Trustee pursuant to this Section~~ Special Servicer that the applicable Master Servicer make a Property Advance shall be deemed to be ~~given~~ a determination by the Special Servicer that such requested Property Advance is not a Nonrecoverable Property Advance. Notwithstanding anything herein to the contrary, no Property Advance shall be required hereunder if the Person otherwise required to make such Property Advance determines that such Property Advance would, if made, constitute a ~~Responsible Officer~~ Nonrecoverable Property Advance. In addition, a Master Servicer shall not make any Property Advance to the extent that it has received written notice that the Special Servicer has determined that such Property Advance would, if made, constitute a Nonrecoverable Property Advance. In making such recoverability determination, such Person will be entitled to (i) give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the recovery of which, at the time of such consideration, is being deferred or delayed by the applicable Master Servicer, the Special Servicer or the Trustee, as applicable, in light of the ~~Trustee if made in accordance with Section 11.04~~ fact that proceeds on the related Mortgage Loan are a source of ~~this Agreement.~~ recovery not only for the Property Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is being or may be deferred or delayed and (cii) ~~None~~ consider (among other things) the obligations of the Borrower under the terms of the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as it may have been modified, (iii) consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions (consistent with the applicable Servicing Standard in the case of the applicable Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (iv) estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the Special Servicer) (among other things) future expenses and (v) estimate and consider (among other things) the timing of recoveries. The applicable Master Servicer, the Special Servicer and the Trustee, as applicable, shall consider Unliquidated Advances in respect of prior Property Advances for purposes of nonrecoverability determinations as if such Unliquidated Advances were unreimbursed Property Advances. If an Appraisal of the related Mortgaged Property shall not have been obtained within the prior 12 month period (and the applicable Master Servicer and the Trustee shall each request any such appraisal from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in the good faith determination of the applicable Master Servicer, the Special Servicer or the Trustee, reflect current market conditions, and the applicable Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to such Appraisal, the applicable Master Servicer, the Special Servicer or the Trustee, as the case may be, 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 Fund (and, in the case of any Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any, and second, to the extent such expense remains unpaid, of the Mortgage Loan. Any determination by a Master Servicer, the Special Servicer or the Trustee shall be permitted to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Property Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable ~~Advance,~~ Property Advance shall be ~~made by such Person (i)~~ evidenced in the case of ~~the~~ such Master Servicer or the Special Servicer by a certificate of a Servicing Officer delivered to the other, to the other Master Servicer, ~~in accordance with~~ to the ~~Servicing Standard~~ Trustee and ~~(ii)~~ the Depositor and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Master Servicers and the Special Servicer, which in each case sets forth such nonrecoverability determination and the considerations of the applicable Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by the applicable Master Servicer, the Special Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or any Updated Appraisal); provided, however, that the Special Servicer may, at its option, make a determination in accordance with ~~its good faith business judgment~~the Servicing Standard, ~~and,~~ that any Property Advance previously made or proposed to be made is nonrecoverable and shall deliver to such Master Servicer and the Trustee notice of such determination. Any such determination shall be ~~evidenced by an Officer’s Certificate as set forth in this Section 3.20(c)~~conclusive and binding on the applicable Master Servicer, the Special Servicer and the Trustee. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s 's determination that an a Property Advance is a Nonrecoverable Advance) and (consistent with the applicable Servicing Standard in the case of the applicable Master Servicer or the Special Servicer) may ~~obtain~~ obtain, at the expense of the Trust ~~Fund~~ (and, in the case of any Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any, and second, to the extent such expense remains unpaid, of the Trust Fund), any analysis, Appraisals or market value estimates or other information ~~as reasonably may be required~~ for such purposes. ~~The~~ Absent bad faith, any such determination by as to the ~~Master Servicer or the Special Servicer that a~~ recoverability of any Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the ~~Master Servicer (in the case of such a determination by the Special Servicer)~~ Certificateholders and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Serviced Companion Loan ~~Holders~~ Noteholders. Notwithstanding the above, (~~and~~ i) the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to ~~rely, conclusively,~~ rely conclusively on any determination by the applicable Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, that a Property ~~Advance is or~~Advance, if made, would be a Nonrecoverable ~~Advance,~~ Property Advance and (ii) the applicable Master Servicer ~~shall~~ will be entitled to ~~rely, conclusively,~~ rely conclusively on any nonrecoverability determination by of the Special ~~Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance~~Servicer. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Property Advance shall ~~use~~ be subject to the standards applicable to the applicable Master Servicer hereunder. With respect to the payment of insurance premiums and delinquent tax assessments, in the event that a Master Servicer determines that a Property Advance of such amounts would constitute a Nonrecoverable Advance, such Master Servicer shall deliver notice of such determination to the Trustee and the Special Servicer. Upon receipt of such notice, the Special Servicer shall determine (with the reasonable assistance of such Master Servicer) whether the payment of such amount (i) is necessary to preserve the related Mortgaged Property and (ii) would be in the best interests of the Certificateholders and, in the case of any Serviced Companion Loans, the related Serviced Companion Loan Noteholders, as a collective whole. If the Special Servicer determines that the payment of such amount (i) is necessary to preserve the related Mortgaged Property and (ii) would be in the best interests of the Certificateholders and, in the case of any Serviced Companion Loans, the related Serviced Companion Loan Noteholders, the Special Servicer shall direct the applicable Master Servicer in writing to make such payment and such Master Servicer shall make such payment, to the extent of available funds, from amounts in its ~~good faith business judgment~~Collection Account or, if a Serviced Whole Loan is involved, from amounts in the applicable Serviced Whole Loan Collection Account. Notwithstanding anything to the contrary contained in this Section 3.24, a Master Servicer may elect (but shall not be required) to make a payment out of its Collection Account to pay for certain expenses specified in this sentence notwithstanding that such Master Servicer has determined that a Property Advance with respect to such expenditure would be a Nonrecoverable Property Advance (unless, with respect to Specially Serviced Loans or REO Loans, the Special Servicer has notified the applicable Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan; provided that in each instance, the applicable Master Servicer determines in accordance with the Servicing Standard (as evidenced by a certificate of a Servicing Officer delivered to the Trustee) that making such expenditure is in the best interests of the Certificateholders (and, in the case of a Serviced Whole Loan, the related Serviced Companion Loan Noteholders), all as a collective whole. The applicable Master Servicer may elect to obtain reimbursement of Nonrecoverable Property Advances from the Trust Fund in accordance with Section 3.06. (de) ~~The~~ Each Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section ~~3.06(a)(ii) or Section 3.06A~~ 3.06, if applicable, of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and each Master Servicer, the ~~Master~~ Special Servicer and the ~~Special Servicer, as applicable,~~ Trustee each hereby ~~covenant~~ covenants and ~~agree~~ agrees to ~~use efforts consistent with the Servicing Standard to obtain~~ promptly seek and effect the reimbursement of such Property Advances from the related ~~Mortgagors~~ Borrowers to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 1 contract

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

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan,~~ The Servicer and the ~~Master~~ Special Servicer (or, to the extent provided in Section ~~3.20(b) of this Agreement~~3.24(c), the Trustee) to the extent specifically provided for in this Agreement, shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. ~~The Special Servicer shall give~~ For purposes of distributions to Certificateholders and compensation to the ~~Master~~ Servicer, the ~~Trustee~~ Special Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so provide. (b) At its option and notwithstanding anything in this Agreement to the contrary, the Special Servicer may either (i) make any ~~affected Companion~~ Property Advance to be made on any Specially Serviced Loan ~~Holder~~ or (ii) give the Servicer not less than five ~~(or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two)~~ Business Days~~’ written~~ ' notice with respect to any Property Advance to be made on any Specially Serviced Loan, before the date on which the ~~Master~~ Servicer is ~~requested~~ required to make ~~any~~ such Property Advance with respect to ~~a given~~ such Specially Serviced ~~Loan~~ Loan; provided, however, that the Special Servicer shall be required to provide the Servicer with only two Business Days' notice in respect of Property Advances required to be made on an urgent or ~~REO Property~~emergency basis (which may include, without limitation, Property Advances required to make tax or insurance payments). In addition, in the event that the Special Servicer elects to have the Servicer make such Property Advance, contemporaneously with giving notice to the Servicer, it shall provide the ~~Master Servicer, the Trustee and any affected Companion Loan Holder~~ Servicer with such information in its possession as the ~~Master Servicer, the Trustee or such Companion Loan Holder, as applicable,~~ Servicer may reasonably request to enable the ~~Master~~ Servicer ~~or the Trustee, as applicable,~~ to determine whether a requested ~~Property~~ Advance would constitute a Nonrecoverable Advance. Any ~~such notice~~ request by the Special Servicer ~~(or, if appropriate, any party under~~ that the ~~applicable Other Pooling and Servicing Agreement in the case of~~ Servicer make a ~~Non-Serviced Mortgage Loan) to the Master Servicer of a required~~ Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the ~~Master~~ Servicer shall be entitled to conclusively rely (but is not required to rely) on such determination~~. Although~~ ; provided, however, that the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be ~~construed~~ liable to ~~limit~~ the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer Trust Fund or the ~~Trustee will remain~~ Servicer if such Advance shall be non-recoverable so long as such determination was made in accordance with the ~~Master Servicer or the Trustee, as applicable~~Servicing Standard. On the ~~fourth~~ fifth Business Day before each Distribution Date, the Special Servicer shall report to the ~~Master~~ Servicer the Special Servicer’s 's determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable ~~Advance promptly after making such determination~~Advance. The ~~Master~~ Servicer ~~and the Trustee~~ shall be entitled to conclusively rely (but is not required to rely) on ~~and~~ such determination. Notwithstanding Section 3.24(e), the Servicer on a monthly basis shall ~~be bound by such a determination and shall be bound by a determination by~~ reimburse the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a~~ for any Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been Advances made by it during the ~~Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination~~immediately preceding Collection Period, ~~that~~ together with any ~~Property~~ related Advance ~~constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances~~ Interest Amounts in respect of ~~prior~~ such Property ~~Advances for~~ Advances, and the ~~purposes~~ Servicer shall be entitled to reimbursement of ~~non-recoverability determinations as if~~ all such amounts ~~were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation~~ to the ~~Master Servicer or the Trustee~~extent permitted pursuant to Section 3.06(d) and if applicable, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provideSection 3.06(e). (bc) The ~~Master~~ Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it ~~will~~ is to be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section ~~3.20(c) of this Agreement~~3.24(d), shall pay the amount of such Property Advance in accordance with such information and instructions~~. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement~~. (cd) None of the ~~Master~~ Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan, Loan ~~or Serviced Whole Loan~~ Pair or REO Property if the ~~Master~~ Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the ~~Master~~ Servicer or the Special ~~Servicer~~ Servicer, as applicable, that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall ~~use its good faith business judgment~~be subject to the standards applicable to the Servicer or Special Servicer, as applicable, hereunder. (de) The ~~Master~~ Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section ~~3.06(a)(ii~~3.06(d) or and if applicable, Section ~~3.06A~~ 3.06(e) of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the ~~Master~~ Servicer and the Special ~~Servicer, as applicable,~~ Servicer each hereby covenant and agree to ~~use efforts consistent with the Servicing Standard to obtain~~ promptly seek and effect the reimbursement of such Property Advances from the related ~~Mortgagors~~ Borrowers to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 1 contract

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

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section ~~3.20(b) of this Agreement~~3.24(c), the Trustee) to the extent specifically provided for in this Agreement, shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance hereof with respect to ~~a given Specially~~ the Mortgage Loans or Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) Whole Loans that ~~such requested Property Advance~~ it is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advancesservicing. For purposes of distributions to Certificateholders and ~~Companion Loan Holders and~~ compensation to the Master Servicer, the Special Servicer or the Trustee, Property Advances shall not be considered to increase the ~~principal balance~~ Stated Principal Balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding that the terms of such Mortgage Loan ~~or Serviced Whole Loan~~ so provide. (b) Notwithstanding anything in this Agreement to the contrary, the Special Servicer shall give the Master Servicer not less than five Business Days' written notice with respect to any Property Advance to be made on any Specially Serviced Loan, before the date on which the Master Servicer is required to make such Property Advance with respect to such Specially Serviced Loan or Serviced REO Loan; provided, however, that the Special Servicer shall be required to provide the Master Servicer with only two Business Days' written notice in respect of Property Advances required to be made on an urgent or emergency basis (which may include, without limitation, Property Advances required to make tax or insurance payments). In addition, in the event that the Property Advance must be made sooner than the two Business Days referred to in the previous sentence, the Special Servicer may make such Property Advances on an emergency basis with respect to any Specially Serviced Loan or Serviced REO Loan. (c) The Master Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it ~~will~~ is to be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section ~~3.20(c) of this Agreement~~3.24(d), shall pay the amount of such Property Advance in accordance with such information and instructions. (d) The Special Servicer shall promptly furnish any party required to make Property Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Property Advances may reasonably request for purposes of making recoverability determinations. Any ~~notice to~~ request by the ~~Trustee pursuant to this Section~~ Special Servicer that the Master Servicer make a Property Advance shall be deemed to be ~~given~~ a determination by the Special Servicer that such requested Property Advance is not a Nonrecoverable Property Advance. Notwithstanding anything herein to the contrary, no Property Advance shall be required hereunder if the Person otherwise required to make such Property Advance determines that such Property Advance would, if made, constitute a ~~Responsible Officer~~ Nonrecoverable Property Advance. In addition, the Master Servicer shall not make any Property Advance to the extent that it has received written notice that the Special Servicer has determined that such Property Advance would, if made, constitute a Nonrecoverable Property Advance. In making such recoverability determination, such Person will be entitled to (i) give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the recovery of which, at the time of such consideration, is being deferred or delayed by the Master Servicer, the Special Servicer or the Trustee, as applicable, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Property Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is being or may be deferred or delayed and (ii) consider (among other things) the obligations of the Borrower under the terms of the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as it may have been modified, (iii) consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions (consistent with the applicable Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (iv) estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) (among other things) future expenses and (v) estimate and consider (among other things) the timing of recoveries. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall consider Unliquidated Advances in respect of prior Property Advances for purposes of nonrecoverability determinations as if such Unliquidated Advances were unreimbursed Property Advances. If an Appraisal of the related Mortgaged Property shall not have been obtained within the prior 12 month period (and the Master Servicer and the Trustee shall each request any such appraisal from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if ~~made~~ such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in ~~accordance with Section 11.04 of this Agreement. (c) None~~ the good faith determination of the Master Servicer, the Special Servicer or the ~~Trustee shall be permitted~~ Trustee, reflect current market conditions, and the Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to ~~make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if~~ such Appraisal, the Master Servicer, the Special Servicer or the ~~Trustee determines~~ Trustee, as the case may be, may, subject to its reasonable and good faith determination that such ~~Advance~~ Appraisal will be demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund (and, in the case of any Serviced Whole Loan, first of the related Serviced B Loan, if any, and second, to the extent such expense remains unpaid, of the related Mortgage Loan, or in the case of a ~~Nonrecoverable Advance~~Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their respective outstanding principal balance). The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the Any determination by the Master Servicer, the Special Servicer or the Trustee that it has made a Nonrecoverable Property Advance or that any proposed Property Advance, if made, would constitute a Nonrecoverable ~~Advance,~~ Property Advance shall be ~~made by such Person (i)~~ evidenced in the case of the Master Servicer or the Special ~~Servicer~~Servicer by a certificate of a Servicing Officer delivered to the other, ~~in accordance with~~ to the ~~Servicing Standard~~ Trustee and ~~(ii)~~ the Depositor and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Master Servicer and the Special Servicer, which in each case sets forth such nonrecoverability determination and the considerations of the Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by the Master Servicer, the Special Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or any Updated Appraisal); provided, however, that the Special Servicer may, at its option, make a determination in accordance with ~~its good faith business judgment~~the Servicing Standard, ~~and,~~ that any Property Advance previously made or proposed to be made is nonrecoverable and shall deliver to the Master Servicer and the Trustee notice of such determination. Any such determination shall be ~~evidenced by an Officer’s Certificate as set forth in this Section 3.20(c)~~conclusive and binding on the Master Servicer, the Special Servicer and the Trustee. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s 's determination that an a Property Advance is a Nonrecoverable Advance) and (consistent with the applicable Servicing Standard in the case of the Master Servicer or the Special Servicer) may ~~obtain~~ obtain, at the expense of the Trust ~~Fund~~ (and, in the case of any Serviced Whole Loan, prior to at the expense of the Trust, first at the expense of the related Serviced B Loan, if any, and second, to the extent such expense remains unpaid, of the related Mortgage Loan, or in the case of a Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their respective outstanding principal balance)), any analysis, Appraisals or market value estimates or other information ~~as reasonably may be required~~ for such purposes. ~~The~~ Absent bad faith, any such determination by as to the ~~Master Servicer or the Special Servicer that a~~ recoverability of any Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the ~~Master Servicer (in the case of such a determination by the Special Servicer)~~ Certificateholders and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Serviced Companion Loan ~~Holders~~ Noteholders. Notwithstanding the above, (~~and~~ i) the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to ~~rely, conclusively,~~ rely conclusively on any determination by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, that a Property ~~Advance is or~~Advance, if made, would be a Nonrecoverable ~~Advance,~~ Property Advance and (ii) the Master Servicer ~~shall~~ will be entitled to ~~rely, conclusively,~~ rely conclusively on any nonrecoverability determination by of the Special ~~Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance~~Servicer. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Property Advance shall ~~use its good faith business judgment~~be subject to the standards applicable to the Master Servicer hereunder. With respect to the payment of insurance premiums and delinquent tax assessments, in the event that the Master Servicer determines that a Property Advance of such amounts would constitute a Nonrecoverable Advance, the Master Servicer shall deliver notice of such determination to the Trustee and the Special Servicer. Upon receipt of such notice, the Special Servicer shall determine (with the reasonable assistance of the Master Servicer) whether the payment of such amount (i) is necessary to preserve the related Mortgaged Property and (ii) would be in the best interests of the Certificateholders and, in the case of any Serviced Companion Loans, the related Serviced Companion Loan Noteholders, as a collective whole. If the Special Servicer determines that the payment of such amount (i) is necessary to preserve the related Mortgaged Property and (ii) would be in the best interests of the Certificateholders and, in the case of any Serviced Companion Loans, the related Serviced Companion Loan Noteholders, the Special Servicer shall direct the Master Servicer in writing to make such payment and Master Servicer shall make such payment, to the extent of available funds, from amounts in the Collection Account or, if a Serviced Whole Loan is involved, from amounts in the applicable Serviced Whole Loan Collection Account. Notwithstanding anything to the contrary contained in this Section 3.24, the Master Servicer may elect (but shall not be required) to make a payment out of the Collection Account to pay for certain expenses specified in this sentence notwithstanding that the Master Servicer has determined that a Property Advance with respect to such expenditure would be a Nonrecoverable Property Advance (unless, with respect to Specially Serviced Loans or Serviced REO Loans, the Special Servicer has notified the Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan; provided that in each instance, the Master Servicer determines in accordance with the Servicing Standard (as evidenced by a certificate of a Servicing Officer delivered to the Trustee) that making such expenditure is in the best interests of the Certificateholders (and, in the case of a Serviced Whole Loan, the related Serviced Companion Loan Noteholders), all as a collective whole. The Master Servicer may elect to obtain reimbursement of Nonrecoverable Property Advances from the Trust Fund in accordance with Section 3.06. (de) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section ~~3.06(a)(ii) or Section 3.06A~~ 3.06, if applicable, of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer, the Special Servicer and the ~~Special Servicer, as applicable,~~ Trustee each hereby ~~covenant~~ covenants and ~~agree~~ agrees to ~~use efforts consistent with the Servicing Standard to obtain~~ promptly seek and effect the reimbursement of such Property Advances from the related ~~Mortgagors~~ Borrowers to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents~~. (e) Notwithstanding anything~~ . The parties acknowledge that, pursuant to the ~~contrary contained in this~~ BACM 2006-1 Pooling and Servicing Agreement, ~~if a Property Advance~~ the BACM 2006-1 Servicer is ~~required~~ obligated to ~~be made under this Agreement~~ make servicing advances with respect to ~~any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced~~ the Desert Passage Mortgage Loan). The Other Servicer or, to the extent such party has made an advance, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Other Special Servicer, the Other Trustee or fiscal agent or other Persons making advances under the Other Pooling and Servicing Agreement, shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with ~~this~~ Section ~~3.20(f), the Master Servicer shall for all purposes~~ 3.06(b) of this ~~Agreement be deemed~~ Agreement) for the pro rata portion (based on Stated Principal Balance) of the related Mortgage Loan (after amounts allocated to ~~have made such Emergency~~ the related B Loan, if any) with respect to any Property Advance ~~at the same time as the Special Servicer actually made such Emergency Advance~~that is nonrecoverable (with, in each case, any pro rata portion of accrued and ~~accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with~~ unpaid interest thereon at provided for under the ~~Advance Rate, at the same time,~~ Other Pooling and Servicing Agreement) in the ~~same~~ manner set forth in the Other Pooling and to Servicing Agreement and the ~~same extent~~ related Co-Lender Agreement, as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advanceapplicable. The Master Servicer ~~shall notify~~ acknowledges that advancing coordination (including with respect to Property Advances relating to a Whole Loan) among the ~~Special~~ Master Servicer ~~in writing of such determination and, if applicable, such Nonrecoverable Property Advance~~ and the other master servicers under each Serviced Companion Loan Securitization Agreement with respect to a Serviced Pari Passu Companion Loan shall be ~~reimbursed to~~ conducted in the ~~Special Servicer pursuant to~~ manner set forth in Section ~~3.06(a~~4.07(f) of this Agreement and the applicable Co-Lender Agreement.

Appears in 1 contract

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

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section ~~3.20(b) of~~ 3.22(b), the Trustee or, to the extent specifically provided for in this Agreement, the ~~Trustee~~Special Servicer) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Any Property Advance ~~with respect~~ required to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice be made by the Special Servicer in accordance with the terms of this Agreement shall, at the Special Servicer's option, either (~~or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan~~i) to be paid by the Master Servicer upon the request of ~~a required Property Advance~~ the Special Servicer or (ii) shall be ~~deemed to be a determination~~ made by the Special Servicer ~~(or such other party under~~ who shall be reimbursed by the ~~applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not~~ Master Servicer on a ~~Nonrecoverable Advance~~monthly basis, and in each case such payments and reimbursements by the Master Servicer shall be ~~entitled~~ treated for all purposes hereunder as a Property Advance. The Special Servicer shall submit not more than one such request in each calendar month unless the request relates to ~~conclusively rely on such determination~~an extraordinary expense. ~~Although~~ In the event that the Master Servicer fails to pay or reimburse the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that for any Property Advance ~~to be~~ made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee ~~will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date,~~ shall reimburse the Special Servicer ~~shall report to the Master Servicer the Special Servicer’s determination as to whether any~~ for such Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations same manner as ~~if such amounts were unreimbursed~~ all other Property Advances. For purposes of distributions to Certificateholders and ~~Companion Loan Holders and~~ compensation to the Master Servicer, Special Servicer or ~~the~~ Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding that the terms of such Mortgage ~~Loan or Serviced Whole~~ Loan so provide. (b) The Master Servicer shall notify the Trustee, and the Special Servicer shall notify the Master Servicer and ~~any related Companion Loan Holder~~ the Trustee, in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, including Master Servicer's reimbursement of a Property Advance made by the Special Servicer, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee (or with respect to a Property Advance required to be made by the Special Servicer, the Master Servicer, and if the Master Servicer so fails, the Trustee), subject to the provisions of Section ~~3.20(c) of this Agreement~~3.22(c), shall pay the amount of such Property Advance in accordance with such information and instructions~~. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement~~. (c) ~~None~~ Notwithstanding anything herein to the contrary, none of the Master Servicer, the Trustee or the Special Servicer ~~or the Trustee~~ shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced Whole Loan or~~ REO Property if the Master Servicer, the ~~Special Servicer~~ Trustee or the ~~Trustee~~ Special Servicer, as applicable, determines that such Advance will be a Nonrecoverable Advance. The ~~determination by~~ Trustee (or the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance ~~has become a Nonrecoverable Property Advance or that any proposed Property Advance, if~~ required to be made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special ~~Servicer~~ Servicer, as applicable, that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The ~~Trustee~~Trustee and the Special Servicer, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall ~~use its good faith business judgment~~be subject to the standards applicable to the Master Servicer hereunder. (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section ~~3.06(a)(ii~~3.06(ii) ~~or Section 3.06A~~ of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and ~~the~~ Special ~~Servicer, as applicable,~~ Servicer hereby covenant and agree to ~~use efforts consistent with the Servicing Standard to obtain~~ promptly seek and effect the reimbursement of such Property Advances from the related ~~Mortgagors~~ Borrowers to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Cap I Inc Comm Mort Pass THR Cer Ser 1998 Xl2)

Property Advances. (a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made ~~such Emergency Advance at~~ thereby. For the ~~time~~ avoidance of doubt, the Special ~~Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master~~ Servicer shall not be ~~required~~ obligated to ~~reimburse the Special Servicer for~~ make any ~~Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency~~ Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CSAIL 2015-C1 Commercial Mortgage Trust)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected~~ the Split-Loan Directing Holder (with respect to the Split-Loan, for so long as the Companion Loan Holder or its designee is the Split-Loan Directing Holder) not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected~~ the Split-Loan Directing Holder (with respect to the Split-Loan, for so long as the Companion Loan Holder or its designee is the Split-Loan Directing Holder) with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Mortgage Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan ~~Holders~~ Holder and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced Whole~~ the Split-Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced Whole~~ the Split-Loan so provide. (b) The Master Servicer shall notify the ~~Trustee~~Trustee and the Split-Loan Directing Holder (with respect to the Split-Loan, for so long as the ~~Special Servicer and any related~~ Companion Loan Holder or its designee is the Split-Loan Directing Holder) in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions~~. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement~~. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced Whole~~ the Split-Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person in good faith business judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing ~~Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment~~Standard), and, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holder (and the related subsequent master servicer and special servicer, if applicable), in the case of the Split-Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (during a Subordinate Control Period or a Collective Consultation Period), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as ~~set forth~~ the case may be (which Appraisal shall be an expense of the Trust, shall take into account any material change in ~~this Section 3.20(c~~circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or ~~Serviced Whole~~ the Split-Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Companion Loan Holder (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CCRE Commercial Mortgage Securities, L.P.)

Property Advances. (a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section ~~3.20(e~~3.20(f) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such ~~other~~ party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer~~ Trustee and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in ~~this~~ Section ~~3.20(c~~3.20(d). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. . (d) The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or ~~the~~ Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (de) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (ef) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj16)

Property Advances. (a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole Loan so provide. (b) The Master Servicer shall notify the Trustee, the Special Servicer and any related Companion Loan Holder in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be permitted to make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or the Special Servicer that a Property Advance is or, if made, would be a Nonrecoverable Advance, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. (d) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.has

Appears in 1 contract

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

Property Advances. (a) Except with respect to a Non-Serviced Mortgage Loan, the Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent incidental to the performance of its duties under this Agreement or otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master ~~Servicer,~~ Servicer and the Trustee ~~and any affected Companion Loan Holder~~ not less than five (or, in the case of ~~emergency advances~~ Emergency Advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master ~~Servicer,~~ Servicer and the Trustee ~~and any affected Companion Loan Holder~~ with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such ~~other~~ party under the ~~applicable~~ Other Pooling and Servicing Agreement) that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the ~~applicable~~ Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion Loan Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding ~~that~~ the terms of such Mortgage ~~Loan or Serviced Whole Loan so provide~~Loan. (b) The Master Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one (1) Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five (5) Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) None of the Master Servicer, the Special Servicer or the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage ~~Loan or Serviced Whole~~ Loan or REO Property if the Master Servicer, the Special Servicer or the Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment, and, shall be evidenced by an Officer’s Certificate as set forth in ~~this~~ Section ~~3.20(c~~3.20(d). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan ~~or Serviced Whole Loan~~ as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. . (d) The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to ~~the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan,~~ the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that ~~a Property Advance is or, if made, would be a Nonrecoverable~~ an Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a ~~Property~~ proposed Advance ~~previously made is, or~~ would be a ~~proposed Property~~ Nonrecoverable Advance, ~~if made, would be, a Nonrecoverable Advance~~ shall use its good faith business judgment. (de) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) ~~or Section 3.06A~~ of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (ef) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance~~, and the~~ . The Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement ~~with interest thereon. Any such~~ for any Advance made by it at the direction of the Special Servicer, ~~but not reimbursed by~~ together with interest thereon at the ~~Master Servicer~~same time, ~~shall be reimbursable out of the Collection Account~~ in the same manner and to the same extent as ~~are~~ the Master Servicer is entitled with respect to any other Advances made ~~by the Master Servicer~~thereby. (fg) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within ~~five~~ ten (510) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer ~~determines,~~ determines in ~~accordance with the Servicing Standard,~~ its reasonable judgment that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj14)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section ~~3.20(b) of this Agreement~~3.24(c), the Trustee) to the extent specifically provided for in this Agreement, shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and any affected Companion Loan Holder not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance hereof with respect to ~~a given Specially~~ the Mortgage Loans or Serviced Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and any affected Companion Loan Holder with such information in its possession as the Master Servicer, the Trustee or such Companion Loan Holder, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer (or such other party under the applicable Other Pooling and Servicing Agreement) Whole Loans that ~~such requested Property Advance~~ it is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer (or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer (or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan) that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advancesservicing. For purposes of distributions to Certificateholders and ~~Companion Loan Holders and~~ compensation to the Master Servicer, the Special Servicer or the Trustee, Property Advances shall not be considered to increase the ~~principal balance~~ Stated Principal Balance of any Mortgage ~~Loan or Serviced Whole~~ Loan, notwithstanding that the terms of such Mortgage Loan ~~or Serviced Whole Loan~~ so provide. (b) Notwithstanding anything in this Agreement to the contrary, the Special Servicer shall give the Master Servicer not less than five Business Days' written notice with respect to any Property Advance to be made on any Specially Serviced Loan, before the date on which the Master Servicer is required to make such Property Advance with respect to such Specially Serviced Loan or REO Loan; provided, however, that the Special Servicer shall be required to provide the Master Servicer with only two Business Days' written notice in respect of Property Advances required to be made on an urgent or emergency basis (which may include, without limitation, Property Advances required to make tax or insurance payments). In addition, in the event that the Property Advance must be made sooner than the two Business Days referred to in the previous sentence, the Special Servicer may make such Property Advances on an emergency basis with respect to any Specially Serviced Loan or REO Loan. (c) The Master Servicer shall notify the ~~Trustee, the Special Servicer and any related Companion Loan Holder~~ Trustee in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it ~~will~~ is to be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section ~~3.20(c) of this Agreement~~3.24(d), shall pay the amount of such Property Advance in accordance with such information and instructions. (d) The Special Servicer shall promptly furnish any party required to make Property Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Property Advances may reasonably request for purposes of making recoverability determinations. Any ~~notice to~~ request by the ~~Trustee pursuant to this Section~~ Special Servicer that the Master Servicer make a Property Advance shall be deemed to be ~~given~~ a determination by the Special Servicer that such requested Property Advance is not a Nonrecoverable Property Advance. Notwithstanding anything herein to the contrary, no Property Advance shall be required hereunder if the Person otherwise required to make such Property Advance determines that such Property Advance would, if made, constitute a ~~Responsible Officer~~ Nonrecoverable Property Advance. In addition, a Master Servicer shall not make any Property Advance to the extent that it has received written notice that the Special Servicer has determined that such Property Advance would, if made, constitute a Nonrecoverable Property Advance. In making such recoverability determination, such Person will be entitled to (i) give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the recovery of which, at the time of such consideration, is being deferred or delayed by the Master Servicer, the Special Servicer or the Trustee, as applicable, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Property Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is being or may be deferred or delayed and (ii) consider (among other things) the obligations of the Borrower under the terms of the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as it may have been modified, (iii) consider (among other things) the related Mortgaged Properties in their "as is" or then current conditions and occupancies, as modified by such party's assumptions (consistent with the applicable Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (iv) estimate and consider (among other things) future expenses (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) and (v) estimate and consider (among other things) the timing of recoveries. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall consider Unliquidated Advances in respect of prior Property Advances for purposes of nonrecoverability determinations as if such Unliquidated Advances were unreimbursed Property Advances. If an Appraisal of the related Mortgaged Property shall not have been obtained within the prior 12 month period (and the Master Servicer and the Trustee shall each request any such appraisal from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if ~~made~~ such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in ~~accordance with Section 11.04 of this Agreement. (c) None~~ the good faith determination of the Master Servicer, the Special Servicer or the ~~Trustee shall be permitted~~ Trustee, reflect current market conditions, and the Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to ~~make a Property Advance as to any Mortgage Loan or Serviced Whole Loan or REO Property if~~ such Appraisal, the Master Servicer, the Special Servicer or the ~~Trustee determines~~ Trustee, as the case may be, may, subject to its reasonable and good faith determination that such ~~Advance~~ Appraisal will be demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund (and, in the case of any Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any, and second, to the extent such expense remains unpaid, of the Mortgage Loan (or in the case of a ~~Nonrecoverable Advance~~Serviced Whole Loan with a Pari Passu Companion Loan, to the holders of the related Mortgage Loan and the Pari Passu Companion Loan on pro rata basis in accordance with their outstanding principal balances). ~~The~~ Any determination by ~~the Master Servicer or the Trustee that it has made (or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a ~~Nonrecoverable Advance or the determination by the~~ Master Servicer, the Special Servicer or the Trustee that it has made a Nonrecoverable Property Advance or that any proposed Property Advance, if made, would constitute a Nonrecoverable ~~Advance,~~ Property Advance shall be ~~made by such Person (i)~~ evidenced in the case of the Master Servicer or the Special Servicer by a certificate of a Servicing Officer delivered to the other, to the other Master Servicer, ~~in accordance with~~ to the ~~Servicing Standard~~ Trustee and ~~(ii)~~ the Depositor and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Master Servicer and the Special Servicer, which in each case sets forth such nonrecoverability determination and the considerations of the Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by the Master Servicer, the Special Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or any Updated Appraisal); provided, however, that the Special Servicer may, at its option, make a determination in accordance with ~~its good faith business judgment~~the Servicing Standard, ~~and,~~ that any Property Advance previously made or proposed to be made is nonrecoverable and shall deliver to the Master Servicer and the Trustee notice of such determination. Any such determination shall be ~~evidenced by an Officer’s Certificate as set forth in this Section 3.20(c)~~conclusive and binding on the Master Servicer, the Special Servicer and the Trustee. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s 's determination that an a Property Advance is a Nonrecoverable Advance) and (consistent with the applicable Servicing Standard in the case of the Master Servicer or the Special Servicer) may ~~obtain~~ obtain, at the expense of the Trust (and, in the case of any Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any, and second, to the extent such expense remains unpaid, of the Trust Fund (or in the case of a Serviced Whole Loan with a Pari Passu Companion Loan, to the holders related Mortgage Loan and Pari Passu Companion Loan on a pro rata basis in accordance with their outstanding principal balances)), any analysis, Appraisals or market value estimates or other information ~~as reasonably may be required~~ for such purposes. ~~The~~ Absent bad faith, any such determination by as to the ~~Master Servicer or the Special Servicer that a~~ recoverability of any Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the ~~Master Servicer (in the case of such a determination by the Special Servicer)~~ Certificateholders and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Serviced Companion Loan ~~Holders~~ Noteholders. Notwithstanding the above, (~~and~~ i) the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to ~~rely, conclusively,~~ rely conclusively on any determination by the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, that a Property ~~Advance is or~~Advance, if made, would be a Nonrecoverable ~~Advance,~~ Property Advance and (ii) the Master Servicer ~~shall~~ will be entitled to ~~rely, conclusively,~~ rely conclusively on any nonrecoverability determination by of the Special ~~Servicer or the Trustee that a Property Advance is or, if made, would be a Nonrecoverable Advance~~Servicer. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Property Advance shall ~~use~~ be subject to the standards applicable to the Master Servicer hereunder. With respect to the payment of insurance premiums and delinquent tax assessments, in the event that a Master Servicer determines that a Property Advance of such amounts would constitute a Nonrecoverable Advance, the Master Servicer shall deliver notice of such determination to the Trustee and the Special Servicer. Upon receipt of such notice, the Special Servicer shall determine (with the reasonable assistance of the Master Servicer) whether the payment of such amount (i) is necessary to preserve the related Mortgaged Property and (ii) would be in the best interests of the Certificateholders and, in the case of any Serviced Companion Loans, the related Serviced Companion Loan Noteholders, as a collective whole. If the Special Servicer determines that the payment of such amount (i) is necessary to preserve the related Mortgaged Property and (ii) would be in the best interests of the Certificateholders and, in the case of any Serviced Companion Loans, the related Serviced Companion Loan Noteholders, the Special Servicer shall direct the Master Servicer in writing to make such payment and the Master Servicer shall make such payment, to the extent of available funds, from amounts in its ~~good faith business judgment~~Collection Account or, if a Serviced Whole Loan is involved, from amounts in the applicable Serviced Whole Loan Collection Account. Notwithstanding anything to the contrary contained in this Section 3.24, a Master Servicer may elect (but shall not be required) to make a payment out of its Collection Account to pay for certain expenses specified in this sentence notwithstanding that the Master Servicer has determined that a Property Advance with respect to such expenditure would be a Nonrecoverable Property Advance (unless, with respect to Specially Serviced Loans or REO Loans, the Special Servicer has notified the Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan; provided that in each instance, the Master Servicer determines in accordance with the Servicing Standard (as evidenced by a certificate of a Servicing Officer delivered to the Trustee) that making such expenditure is in the best interests of the Certificateholders (and, in the case of a Serviced Whole Loan, the related Serviced Companion Loan Noteholders), all as a collective whole. The Master Servicer may elect to obtain reimbursement of Nonrecoverable Property Advances from the Trust Fund in accordance with Section 3.06. (de) The Master Servicer, the Special Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section ~~3.06(a)(ii) or Section 3.06A~~ 3.06, if applicable, of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer, the Special Servicer and the ~~Special Servicer, as applicable,~~ Trustee each hereby ~~covenant~~ covenants and ~~agree~~ agrees to ~~use efforts consistent with the Servicing Standard to obtain~~ promptly seek and effect the reimbursement of such Property Advances from the related ~~Mortgagors~~ Borrowers to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Loan or REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in the case of an Emergency Advance, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the Master Servicer shall be entitled to be reimbursed for such Emergency Advance, together with interest thereon at the Advance Rate, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CD 2006-Cd3 Mortgage Trust)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected Companion~~ the Loan Combination Directing Holder (with respect to the Loan Combination, for so long as the Non-Trust Mortgage Loan Holder or its designee is the Loan Combination Directing Holder) not less than five (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, two) Business Days’ written notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected Companion~~ the Loan Combination Directing Holder (with respect to the Loan Combination, for so long as the Non-Trust Mortgage Loan Holder or its designee is the Loan Combination Directing Holder) with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Mortgage Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and ~~Companion~~ Non-Trust Mortgage Loan ~~Holders~~ Holder and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced Whole Loan~~the Loan Combination, notwithstanding that the terms of such Mortgage Loan or ~~Serviced Whole~~ the Loan Combination so provide. (b) The Master Servicer shall notify the ~~Trustee~~Trustee and the Loan Combination Directing Holder (with respect to the Loan Combination, for so long as the ~~Special Servicer and any related Companion~~ Non-Trust Mortgage Loan Holder or its designee is the Loan Combination Directing Holder) in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions. Any notice to the Trustee pursuant to this ~~Section~~ section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced Whole~~ the Loan Combination or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made, constitute a Nonrecoverable Advance, shall be made by such Person in commercially reasonable judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing ~~Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment~~Standard), and, shall be evidenced by an Officer’s Certificate as set forth in this Section 3.20(c). In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Serviced Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then-current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the ~~Companion~~ Non-Trust Mortgage Loan ~~Holders~~ Holder (and the related ~~Other Master Servicer~~ subsequent master servicer and ~~Other Special Servicer~~special servicer, if applicable), in the case of ~~any Serviced Whole Loan~~the Loan Combination, the Trustee (unless it is the Person making the determination), the ~~Controlling~~ Subordinate Class Representative (~~prior to the occurrence and continuance of~~ during a Subordinate Control Period or a Collective Consultation ~~Termination Event~~Period), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or the Loan Combination as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its ~~good faith business~~ commercially reasonable judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Non-Trust Mortgage Loan Holder (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be construed to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Barclays Commercial Mortgage Securities LLC)

Property Advances. (a) ~~Except with respect to a Non-Serviced Mortgage Loan, the~~ The Master Servicer (or, to the extent provided in Section 3.20(b) of this Agreement, the Trustee) shall make any Property Advances as and to the extent ~~incidental to the performance of its duties under this Agreement or~~ otherwise required pursuant to the terms hereof. The Special Servicer shall give the Master Servicer, the Trustee and ~~any affected~~ the Whole Loan Directing Holder (with respect to the related Whole Loan, for so long as the Companion Interest Holder or its designee is the Whole Loan ~~Holder~~ Directing Holder) not less than five (5) (or, in the case of emergency advances pursuant to Section 3.20(e) of this Agreement, ~~two~~two (2)) Business Days’ written (facsimile) notice before the date on which the Master Servicer is requested to make any Property Advance with respect to a given Specially Serviced Mortgage Loan or REO Property. In addition, the Special Servicer shall provide the Master Servicer, the Trustee and ~~any affected~~ the Whole Loan Directing Holder (with respect to the related Whole Loan, for so long as the related Companion Interest Holder or its designee is the Whole Loan ~~Holder~~ Directing Holder) with such information in its possession as the Master ~~Servicer,~~ Servicer or the ~~Trustee or such Companion Loan Holder~~Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Property Advance would constitute a Nonrecoverable Advance. Any such notice by the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ to the Master Servicer of a required Property Advance shall be deemed to be a determination by the Special Servicer ~~(or such other party under the applicable Other Pooling and Servicing Agreement)~~ that such requested Property Advance is not a Nonrecoverable Advance, and the Master Servicer shall be entitled to conclusively rely on such determination. Although the Special Servicer ~~(or, if appropriate, any party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ may determine whether a Property Advance is a Nonrecoverable Advance, the Special Servicer will have no right to make an affirmative determination that any Property Advance to be made (or contemplated to be made) by the Master Servicer or the Trustee is, or would be, recoverable; provided that this sentence shall not be construed to limit the Special Servicer’s right to make a determination that a Property Advance to be made (or contemplated to be made), will not be ultimately recoverable. In the absence of a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance is a Nonrecoverable Advance, all determinations of recoverability with respect to Property Advances to be made (or contemplated to be made) by the Master Servicer or the Trustee will remain with the Master Servicer or the Trustee, as applicable. On the fourth Business Day before each Distribution Date, the Special Servicer shall report to the Master Servicer the Special Servicer’s determination as to whether any Property Advance previously made with respect to a Specially Serviced Mortgage Loan is a Nonrecoverable Advance promptly after making such determination. The Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by such a determination and shall be bound by a determination by the Special Servicer ~~(or, if appropriate, a party under the applicable Other Pooling and Servicing Agreement in the case of a Non-Serviced Mortgage Loan)~~ that a Property Advance previously made or contemplated to be made with respect to a Specially Serviced Mortgage Loan is or would be a Nonrecoverable Advance (but this statement shall not be construed to entitle the Special Servicer to reverse any determination that may have been made by the Master Servicer or the Trustee or to prohibit the Master Servicer or the Trustee from making a determination, that any Property Advance constitutes or would constitute a Nonrecoverable Advance). The Master Servicer and the Special Servicer shall consider Unliquidated Advances in respect of prior Property Advances for the purposes of non-recoverability determinations as if such amounts were unreimbursed Property Advances. For purposes of distributions to Certificateholders and Companion ~~Loan~~ Interest Holders and compensation to the Master Servicer or the Trustee, Property Advances shall not be considered to increase the principal balance of any Mortgage Loan or ~~Serviced~~ Whole Loan, notwithstanding that the terms of such Mortgage Loan or ~~Serviced~~ Whole Loan so provide. (b) The Master Servicer shall notify the ~~Trustee~~Trustee and Whole Loan Directing Holder (with respect to the related Whole Loan, for so long as the ~~Special Servicer and any~~ related Companion Interest Holder or its designee is the Whole Loan ~~Holder~~ Directing Holder) in writing promptly upon, and in any event within one ~~(1)~~ Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it will be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five ~~(5)~~ Business Days following such notice, the Trustee, subject to the provisions of Section 3.20(c) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions~~. Any notice to the Trustee pursuant to this Section shall be deemed to be given to a Responsible Officer of the Trustee if made in accordance with Section 11.04 of this Agreement~~. (c) ~~None of~~ Neither the Master ~~Servicer, the Special~~ Servicer or nor the Trustee shall be ~~permitted~~ obligated to make a Property Advance as to any Mortgage Loan or ~~Serviced~~ Whole Loan or REO Property if the Master Servicer, the Special Servicer or the ~~Trustee~~ Trustee, as applicable, determines that such Advance will be a Nonrecoverable Advance. The determination by ~~the Master Servicer or the Trustee~~ any Person with an obligation hereunder to make Property Advances that it has made ~~(or, the determination by the Special Servicer that the Master Servicer or the Trustee has made)~~ a Nonrecoverable Advance or ~~the determination by the Master Servicer, the Special Servicer or the Trustee~~ that any proposed Property Advance, if made, would constitute a Nonrecoverable Advance or a determination by the Special Servicer that a Property Advance previously made or proposed to be made is or would, if made constitute a Nonrecoverable Advance, shall be made by such Person in good faith reasonable judgment (i) and in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing ~~Standard and (ii) in the case of the Trustee, in accordance with its good faith business judgment~~Standard), and, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the related Companion Interest Holders (and the related subsequent master servicer and special servicer, if applicable), in the case of the Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as ~~set forth~~ the case may be (which Appraisal shall be an expense of the Trust, shall take into account any material change in ~~this Section 3.20(c~~circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Mortgagor under the terms of the related Mortgage Loan or ~~Serviced~~ Whole Loan as it may have been modified, to consider (among other things) the related Mortgaged Properties in their “as is” or ~~then-~~then current conditions and occupancies, as modified by such party’s assumptions regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, to estimate and consider (among other things) future expenses and to estimate and consider (among other things) the timing of recoveries. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and may obtain at the expense of the Trust Fund any analysis, Appraisals or market value estimates or other information as reasonably may be required for such purposes. The determination by the Master Servicer or the Special Servicer that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; provided that this sentence shall not be construed to entitle the Special Servicer to reverse any other authorized Person’s determination, or to prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance. The determination by the Master Servicer, the Special Servicer or the Trustee that a Property Advance has become a Nonrecoverable Property Advance or that any proposed Property Advance, if made pursuant to this Section 3.20 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the foregoing), would constitute a Nonrecoverable Property Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holders (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Master Servicer (unless it is the Person making the determination), the Special Servicer (unless it is the Person making the determination) and, if the Trustee is making the determination, the Depositor, setting forth the basis for such determination, together with any other information that supports such determination together with a copy of any Appraisal of the related Mortgaged Property or REO Property, as the case may be (which Appraisal shall be an expense of the Trust Fund, shall take into account any material change in circumstances of which such Person is aware or such Person has received new information, either of which has a material effect on the value and shall have been conducted in accordance with the standards of the Appraisal Institute within the twelve months preceding such determination of nonrecoverability), and further accompanied by related Mortgagor operating statements and financial statements, budgets and rent rolls of the related Mortgaged Property (to the extent available and/or in such Person’s possession) and any engineers’ reports, environmental surveys or similar reports that such Person may have obtained and that support such determination. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer ~~or the Special Servicer~~ that a Property ~~Advance is or, if made, would be a Nonrecoverable~~ Advance~~, and the Master Servicer shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Trustee that a Property Advance is or~~, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Advance shall use its good faith business judgment. Absent bad faith, any determination made by a Person which is authorized hereunder to make such determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance will be conclusive and binding on the other parties to this Agreement and on the Certificateholders and the Companion Interest Holders (but this statement shall not be construed to entitle any such authorized Person to reverse any other such authorized Person’s determination, or to be prohibit any such other authorized Person from making a determination, that a Property Advance constitutes or would constitute a Nonrecoverable Advance). (d) The Master ~~Servicer, the Special~~ Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by any of them to the extent permitted pursuant to Section 3.06(a)(ii) or Section 3.06A of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer and the Special Servicer, as applicable, hereby covenant and agree to use efforts consistent with the Servicing Standard to obtain the reimbursement of such Property Advances from the related Mortgagors to the extent permitted by applicable law and the related ~~Mortgage~~ Loan Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, if a Property Advance is required to be made under this Agreement with respect to any Specially Serviced Mortgage Loan or REO ~~Property (other than an REO Property related to a Non-Serviced Mortgage Loan)~~Property, the Special Servicer shall request that the Master Servicer make such Property Advance, such request to be made, in writing, at least five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days, provided that the written request sets forth the nature of the emergency or the basis of the urgency) in advance of the date on which such Property Advance is required to be made hereunder and to be accompanied by such information and documentation regarding the subject Property Advance as the Master Servicer may reasonably request, subject to the Master Servicer’s right to determine that such Property Advance does not constitute or would not constitute a Nonrecoverable Advance. The Master Servicer shall have the obligation to make any such Property Advance that it is so requested by the Special Servicer to make, within five (5) Business Days (or, in ~~the case of~~ an ~~Emergency Advance~~emergency situation or on an urgent basis, two (2) Business Days) of the Master Servicer’s receipt of such request. The Special Servicer shall have no obligation to make any Property Advance; provided that the Special Servicer may in its sole discretion elect to make an Emergency Advance, and the Master Servicer shall reimburse the Special Servicer for such Advance (with interest thereon), provided that such Advance is not determined by the Master Servicer, in accordance with the Servicing Standard, to be nonrecoverable. Once reimbursed, the Master Servicer shall be deemed to have made such Property Advance as of the date made by the Special Servicer, and shall be entitled to reimbursement with interest thereon. Any such Advance made by the Special Servicer, but not reimbursed by the Master Servicer, shall be reimbursable out of the Collection Account in the same manner as are Advances made by the Master Servicer. (f) Within five (5) Business Days of making an Emergency Advance, the Special Servicer shall deliver to the Master Servicer request for reimbursement for such Emergency Advance, along with all information and documentation regarding the subject Emergency Advance as the Master Servicer may reasonably request, and the Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse the Special Servicer for any unreimbursed Emergency Advances (other than Nonrecoverable Property Advances) made by the Special Servicer pursuant to the proviso to the penultimate sentence of Section 3.20(e), together with interest thereon at the Advance Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by the Special Servicer. Upon the Master Servicer’s reimbursement to the Special Servicer of any Emergency Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(f), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Emergency Advance at the same time as the Special Servicer actually made such Emergency Advance, and accordingly, the The Master Servicer shall be entitled to ~~be reimbursed~~ reimbursement for ~~such Emergency Advance~~any Advance made by it at the direction of the Special Servicer, together with interest thereon ~~at the Advance Rate,~~ at the same time, in the same manner and to the same extent as the Master Servicer ~~would otherwise have been~~ is entitled ~~if it had actually~~ with respect to any other Advances made such Emergency Advance at the time the Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.20(f), the Master Servicer shall not be required to reimburse the Special Servicer for any Emergency Advance if the Master Servicer determines, in accordance with the Servicing Standard, that such Emergency Advance, although not characterized by the Special Servicer as a Nonrecoverable Property Advance, is in fact a Nonrecoverable Property Advance. The Master Servicer shall notify the Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Property Advance shall be reimbursed to the Special Servicer pursuant to Section 3.06(a) of this Agreementthereby.

Appears in 1 contract

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

Common use of Property Advances Clause in Contracts