Revolver Advances (a) Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each Lender with a Commitment agrees (severally, not jointly or jointly and severally) to make revolving loans (“Advances”) to Borrowers in an amount at any one time outstanding not to exceed the lesser of:
(i) such Lender’s Commitment, or
(ii) such Lender’s Pro Rata Share of an amount equal to the lesser of:
(A) the Maximum Revolver Amount less the sum of (1) the Letter of Credit Usage at such time, plus (2) the principal amount of Swing Loans outstanding at such time, and
(B) the Borrowing Base at such time less the sum of (1) the Letter of Credit Usage at such time, plus (2) the principal amount of Swing Loans outstanding at such time.
(b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement. The outstanding principal amount of the Advances, together with interest accrued thereon, shall be due and payable on the Maturity Date or, if earlier, on the date on which they are declared due and payable pursuant to the terms of this Agreement.
(c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the right (but not the obligation) to establish, increase, reduce, eliminate, or otherwise adjust reserves from time to time against the Borrowing Base or the Maximum Revolver Amount in such amounts, and with respect to such matters, as Agent in its Permitted Discretion shall deem necessary or appropriate, including (i) reserves in an amount equal to the Bank Product Reserve Amount, (ii) reserves with respect to (A) sums that Parent or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay when due, and (B) amounts owing by Parent or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien which is a permitted purchase money Lien or the interest of a lessor under a Capital Lease), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral, and (iii)
Revolving Advances (a) The Note A-2 Holder hereby agrees to advance to the Mortgage Loan Borrower any Revolving Advance required to be made under Note A-2 and the Mortgage Loan Documents, it being the specific intent of the parties hereto that no other Noteholder shall have any obligation and shall not be liable for making any Revolving Advance. The Note A-2 Holder shall remit each Revolving Advance on the date that such Revolving Advance is required to be made pursuant to the Mortgage Loan Documents and Note A-2. The parties hereto agree that (i) the determination of whether the Mortgage Loan Borrower is entitled to receive any Revolving Advance shall rest solely with the Note A-2 Holder, who shall be responsible for conducting any and all due diligence, loan documentation and pre-funding requirements in connection therewith, and (ii) the Note A-2 Holder shall be solely responsible for funding the Revolving Advance to the Mortgage Loan Borrower following such determination that the Mortgage Loan Borrower is entitled to receive such Revolving Advance under the terms of the Mortgage Loan Agreement.
(b) For so long as the Revolving Advance Obligation has not been fully discharged and any Securitization is outstanding, Note A-2 may only be transferred to a transferee:
(i) that is a Qualified Institutional Lender, or
(ii) if the credit rating of the transferee from any applicable Rating Agency is lower than the credit rating of the Initial Note A-2 Holder, as to which the A-2 Holder has received confirmation in writing from each such Rating Agency that such Transfer will not result in a qualification, downgrade or withdrawal of its then current ratings of the Certificates, which confirmation will not be predicated upon any action by the Mortgage Loan Borrower. In addition, for so long as the Revolving Advance Obligation has not been fully discharged, (i) no Transfer of Note A-2 shall violate the Mortgage Loan Documents and (ii) the transferee shall assume all Revolving Advance Obligations pursuant to an assignment and assumption agreement whereby such transferee agrees to be bound by all provisions applicable to the Note A-2 Holder.
(c) The Note A-2 Holder shall indemnify and hold harmless each other Noteholder, any Servicer, the Certificate Administrator and the Trustee (each a “Revolving Advance Indemnified Party”), against any and all losses, claims, damages, costs, expenses (including the fees and disbursements of outside counsel retained by any such person) and liabilities in connection with, arising out of, or as a result of the Note A-2 Holder's failure to satisfy its obligations to make any and all Revolving Advances, including without limitation, (i) any claims made by the Mortgage Loan Borrower or its Affiliates or (ii) any failure of payment by the Mortgage Loan Borrower under the Mortgage Loan, in each case that results from a failure to make any Revolving Advance as required under the Mortgage Loan Documents, except, as to such Future Funding Indemnified Party, to the extent that it is finally judicially determined that any losses, claims, damages, costs, expenses or liabilities resulted primarily from the bad faith or willful misconduct of such Revolving Advance Indemnified Party. Each Revolving Advance Indemnified Party shall be a third party beneficiary of this Agreement with respect to the indemnification obligations of the Note A-2 Holder set forth in this Section 41. In the event that the Note A-2 Holder becomes involved in any action, proceeding or investigation in connection with any transaction or matter referred to or contemplated by this Agreement, the Note A-2 Holder shall promptly reimburse such Revolving Advance Indemnified Party upon demand therefor in an amount equal to its reasonable legal and other expenses (including the costs of any investigation and preparation) incurred in connection therewith to the extent such party is entitled to indemnification for such legal or other costs and expenses hereunder. In addition, the Note A-2 Holder agrees that each Revolving Advance Indemnified Party may deduct and offset any amount to be indemnified hereunder from and against any amount that is due to the Note A-2 Holder under the Servicing Agreement. The indemnification obligations of the Note A-2 Holder hereunder shall survive any termination of the Agreement. Each Revolving Advance Indemnified Party's rights pursuant to this Section 41 are in addition to any other rights a Revolving Advance Indemnified Party may have at law or in equity.
(d) The Note A-2 Holder shall provide notice of the making of any Revolving Advance and the amount of such Revolving Advance to each other Noteholder, the Master Servicer, the Special Servicer and the Operating Advisor.
(e) The Note A-1-A-1 Holder (or at any time when such Note is included in a Securitization, the Master Servicer) shall maintain a record of each Revolving Advance advanced by the Note A-2 Holder and will increase the Note A-2 Principal Balance by the amount of such Revolving Advance.
P&I Advances (a) On or before 1:00 p.m. (New York City time) on each P&I Advance Date, the Master Servicer shall, subject to Section 4.03(c), either (i) remit from its own funds to the Certificate Administrator for deposit into the Distribution Account an amount equal to the aggregate amount of P&I Advances with respect to Mortgage Loans and successor REO Mortgage Loans, if any, to be made by the Master Servicer in respect of the related Distribution Date, (ii) apply amounts held in the Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances, or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by the Master Servicer; provided, however, that to the extent that amounts on deposit in the Collection Account were insufficient to pay the CREFC® License Fee on the related Master Servicer Remittance Date, the Master Servicer shall apply any P&I Advances required to be made by it on such P&I Advance Date pursuant to this Section 4.03 to pay the balance of such CREFC® License Fee. Any amounts held in the Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer’s records and replaced by the Master Servicer by deposit in the Collection Account prior to the next succeeding Master Servicer Remittance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and interest in respect of which such P&I Advances were made). If, as of 3:30 p.m. (New York City time) on any P&I Advance Date, the Master Servicer shall not have made any P&I Advance required to be made by it on such date pursuant to this Section 4.03(a) (and shall not have delivered to the Certificate Administrator and the Trustee the Officer’s Certificate and other documentation related to a determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(c) below) or shall not have remitted any portion of the Master Servicer Remittance Amount required to be remitted by the Master Servicer on such date, then the Certificate Administrator shall provide notice of such failure to the Master Servicer by facsimile transmission at (▇▇▇) ▇▇▇-▇▇▇▇ and by telephone at (▇▇▇) ▇▇▇-▇▇▇▇ as soon as possible, but in any event before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such notice the Certificate Administrator does not receive the full amount of such P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date, then the Certificate Administrator shall promptly notify the Trustee (but in any event before 10:00 a.m. (New York City time) and the Trustee shall (not later than 12:00 noon, New York City time, on the related Distribution Date) make the portion of such P&I Advances that was required to be, but was not, made or remitted, as the case may be, by the Master Servicer with respect to the related Distribution Date. With respect to any Mortgage Loan that is part of a Serviced Loan Combination, the Master Servicer or Trustee, as applicable, shall provide the Other Master Servicer and the Other Trustee under the Other Securitization with written notice of any P&I Advance relating to such Mortgage Loan within two (2) Business Days of making such P&I Advance.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer (or by the Trustee, if the Master Servicer fails to do so) in respect of any Distribution Date, subject to Section 4.03(c) below, shall equal the aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each case net of any related Master Servicing Fees (and, in the case of a Non-Trust-Serviced Pooled Mortgage Loan or REO Mortgage Loan that is a successor thereto, the Non-Trust Primary Servicing Fee and Non-Trust Trust Advisor fee payable under the related Non-Trust Pooling and Servicing Agreement), due or deemed due and net of any Post-ARD Additional Interest, as the case may be, in respect of the Mortgage Loans and any successor REO Mortgage Loans with respect thereto on their respective Due Dates occurring in the month in which such Distribution Date occurs, in each case to the extent such amount was not Received by the Trust as of the close of business on the related Determination Date; provided that, if an Appraisal Reduction Amount exists with respect to any Required Appraisal Loan, then the interest portion of any P&I Advance required to be made in respect of such Required Appraisal Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (i) the amount of the interest portion of such P&I Advance that would otherwise be required to be made in respect of such Required Appraisal Loan for such Distribution Date without regard to this proviso, multiplied by (ii) a fraction, expressed as a percentage, the numerator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount, and the denominator of which shall equal the Stated Principal Balance of such Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The determination by the Master Servicer (or, if applicable, the Trustee) that a prior P&I Advance (or Unliquidated Advance in respect thereof) that it has made constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be made by such Person subject to the Servicing Standard or, in the case of the Trustee, in its reasonable, good faith judgment. In making such recoverability determination, such Person will be entitled to consider (among other things) the obligations of the Borrower 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 and may obtain from the Special Servicer any analysis, Appraisals or market value estimates or other information in the possession of the Special Servicer for such purposes. Any determination by the Master Servicer (or, if applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer’s Certificate delivered to the Depositor, the Special Servicer, the Certificate Administrator, the Subordinate Class Representative and, if made by the Master Servicer, the Trustee (on or before the related P&I Advance Date in the case of a proposed P&I Advance) and, if such Nonrecoverable P&I Advance is with respect to a Mortgage Loan in any Serviced Pari Passu Loan Combination, the Serviced Pari Passu Companion Loan Holder(s) or, following the securitization of a related Serviced Pari Passu Companion Loan, the Other Master Servicer (if applicable), setting forth the basis for such determination, accompanied by a copy of an Appraisal of the related Mortgaged Property or REO Property performed within the nine (9) months preceding such determination by a Qualified Appraiser, and further accompanied by any other information, including engineers’ reports, environmental surveys or similar reports, that the Person making such determination may have obtained. A copy of any such Officer’s Certificate (and accompanying information) of the Trustee shall also be promptly delivered to the Certificate Administrator, the Subordinate Class Representative, the Majority Subordinate Certificateholder, the Special Servicer and the Master Servicer for the subject Mortgage Loan and, with respect to any Serviced Pari Passu Loan Combination, the Serviced Pari Passu Companion Loan Holder(s) and the Other Master Servicer (if applicable). Absent bad faith, the Master Servicer’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders and, in all cases, the Trustee shall be entitled to conclusively rely on any nonrecoverability determination made by the Master Servicer with respect to a particular P&I Advance. The Special Servicer shall promptly furnish any party required to make P&I Advances hereunder or, in the case of a Serviced Pari Passu Companion Loan, comparable advances under the terms of the Other Pooling and Servicing Agreement, with any information in its possession regarding the Specially Serviced Mortgage Loans and REO Properties as such party required to make P&I Advances may reasonably request. The Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances as outstanding Advances for purposes of recoverability determinations as if such Unliquidated Advance were a P&I Advance. The Special Servicer for each Mortgage Loan shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advance, in which case, after written notice of such determination by the Special Servicer to the Master Servicer and the Trustee, such P&I Advance shall constitute a Nonrecoverable P&I Advance for all purposes of this Agreement and the Master Servicer and the Trustee shall conclusively rely on such determination by the Special Servicer that a P&I Advance is a Nonrecoverable Advance; provided that in no event shall a determination by the Special Servicer that a previously made or proposed P&I Advance would be recoverable be binding on the Master Servicer or the Trustee. A copy of any Officer’s Certificate (and accompanying information) of the Special Servicer in support of its determination shall be promptly delivered to the Master Servicer for the subject Mortgage Loan. The Special Servicer may update or change its recoverability determination at any time.
(d) In the case of each Mortgage Loan, the Master Servicer and the Trustee shall each be entitled to receive interest at the Reimbursement Rate in effect from time to time, accrued on the amount of each P&I Advance made thereby (with its own funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or Assumed Monthly Payment in respect of a Mortgage Loan that is a Past Grace Period Loan or an REO Mortgage Loan when made, in which case such interest shall begin to accrue from the related P&I Advance Date, or (ii) is made with respect to a Within Grace Period Loan and remains outstanding when the subject Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in which case such interest shall begin to accrue when the subject Mortgage Loan becomes a Past Grace Period Loan in respect of the subject Monthly Payment or Assumed Monthly Payment, in either case, for so long as such P&I Advance is outstanding (or, in the case of Advance Interest payable to the Master Servicer, if earlier, until the Late Collection of the delinquent principal and/or interest in respect of which such P&I Advance was made has been Received by the Trust). Such interest with respect to any P&I Advance shall be payable: (i) first, in accordance with Section 3.05 and 3.25, out of any Default Charges subsequently collected on the particular Mortgage Loan or REO Mortgage Loan as to which such P&I Advance relates; and (ii) then, after such P&I Advance is reimbursed, but only if and to the extent that such Default Charges are insufficient to cover such Advance Interest, out of general collections on the Mortgage Loans and REO Properties on deposit in the Collection Account. The Master Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse itself or the Trustee, as applicable, for any outstanding P&I Advance made thereby with respect to any Mortgage Loan or REO Mortgage Loan as soon as practicable after funds available for such purpose are deposited in the Collection Account, and in no event shall interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection was received by or on behalf of the Trust as of the related P&I Advance Date.
(e) With respect to any Serviced Loan Combination, the Master Servicer will be permitted to make its determination that it has made a P&I Advance on the related Mortgage Loan that is a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Mortgage Loan in accordance with Section 4.03(a) independently of any determination made in respect of the related Serviced Pari Passu Companion Loan, by the related Other Master Servicer. If the Master Servicer determines that a proposed P&I Advance with respect to such Serviced Loan Combination, if made, or any outstanding P&I Advance with respect to any such Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance or if the Master Servicer subsequently determines that a proposed Servicing Advance would be a Nonrecoverable Advance or an outstanding Servicing Advance is or would be a Nonrecoverable Advance, or if the Master Servicer receives written notice from the Special Servicer for such Serviced Loan Combination that the Special Servicer has made such a determination, pursuant to this Section 4.03(e), the Master Servicer shall promptly provide the related Other Master Servicer written notice of such determination. If the Master Servicer receives written notice from any related Other Master Servicer that such Other Master Servicer has determined, with respect to the related Serviced Pari Passu Companion Loan, that any proposed advance of principal and/or interest with respect to such Serviced Pari Passu Companion Loan would be, or any outstanding advance of principal and interest is, a nonrecoverable advance of principal and/or interest, such determination shall not be binding on the Certificateholders, the Master Servicer or the Trustee but each of the Master Servicer and the Trustee shall be entitled to conclusively rely on any such nonrecoverability determination. In connection with any Non-Trust-Serviced Pooled Mortgage Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Non-Trust-Serviced Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or, if made, would be a Nonrecoverable P&I Advance may be made independently from any determinations (or the absence of any determinations) made by the related Non-Trust Master Servicer regarding nonrecoverability of debt service advances on the related Non-Serviced Pari Passu Companion Loan. The Special Servicer, for each Serviced Loan Combination or Non-Trust-Serviced Pooled Mortgage Loan, shall also be entitled to make a determination (subject to the same standards and procedures that apply in connection with a determination by the Master Servicer) to the effect that a prior P&I Advance (or Unliquidated Advance in respect thereof) previously made hereunder by the Master Servicer (or, if applicable, the Trustee) constitutes a Nonrecoverable P&I Advance or that any proposed P&I Advance by the Master Servicer (or, if applicable, the Trustee), if made, would constitute a Nonrecoverable P&I Advan
