Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall: (i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator); (ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”); (iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee; (iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and (v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes; (C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee; (D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06; (E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee; (F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date; (G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance; (H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and (I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement. (b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances. (c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan. (d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside a Non-Serviced Trust Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination immediately preceding Due Date (without regard to any grace period) in (and which delinquent payment has not been cured as of the same month as Business Day immediately preceding such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix3.06(a)(x) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, Charges or delinquent Monthly Payments monthly payments on the any Companion LoansLoan. The amount of interest required to be advanced in respect of delinquent payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. To the extent required under the related Co-Lender Agreement, if a P&I Advance is made with respect to any Mortgage Loan with a related Serviced Companion Loan, the Master Servicer or Trustee shall notify the Other Master Servicer and the Other Trustee of the amount of P&I Advance made with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated permitted to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole Loan Combination 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;
(B) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Non-Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances. With respect to each Whole Loan, if the Master Servicer, Special Servicer or Trustee has determined that a P&I Advance with respect to such Mortgage Loan, would be or has become a Nonrecoverable Advance, the Master Servicer shall provide each Other Master Servicer, Other Special Servicer and Other Trustee written notice of such determination together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability within the time period required by the related Co-Lender Agreement.
(c) With respect to each Outside Non-Serviced Trust Mortgage Loan, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMoody’s, Fitch Fitch, KBRA or KBRA Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMoody’s, Fitch Fitch, KBRA or KBRAMorningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced applicable Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 5 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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in during the Prepayment Collection Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account an amount equal to the Aggregate Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (de) of the definition of “Aggregate Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier REMIC Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any Outside Serviced Mortgage Loan, any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received by the Master Servicer on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as (or, in the case of an Outside Serviced Mortgage Loan, was not received by the Master Servicer on such Mortgage Loan as of the close of business on the Business Day immediately preceding) such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®® and the portion of such P&I Advance equal to the Asset Representations Reviewer Ongoing Fee, the Operating Advisor Fee or the Trustee/Certificate Administrator Fee shall, to the extent the subject fee remains unpaid to the applicable party hereunder, shall be deposited in the Collection Account for payment to such party;
(v) remit to the Certificate Administrator, as compensation for it and the Trustee, the Trustee/Certificate Administrator Fee for the related Distribution Date;
(vi) remit to the Certificate Administrator for deposit in the Excess Liquidation Proceeds Reserve Account an amount equal to the Excess Liquidation Proceeds received during the related Collection Period (or, in the case of an Outside Serviced Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator), if any; and
(vvii) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier REMIC Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee Trustee, any applicable Directing Holder and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) if it is an applicable Consulting Party, notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and if the Special Servicer determines that such P&I Advance is a Nonrecoverable P&I Advance, such determination shall be conclusive and binding on the Master Servicer and the Trustee, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. Within 2 Business Days of making a P&I Advance on any Mortgage Loan that is part of a Loan Combination, the Master Servicer or the Trustee, as applicable, shall provide written notice of the amount of such P&I Advance to (i) if such Mortgage Loan is part of a Serviced Loan Combination, the related Other Servicer, Other Special Servicer and Other Trustee of each Other Securitization Trust that holds a related Serviced Companion Loan or (ii) if such Mortgage Loan is part of an Outside Serviced Loan Combination, the related Outside Servicer, Outside Special Servicer and Outside Trustee of the related Outside Securitization Trust. With respect to P&I Advances and each Outside Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Outside Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event)any applicable Directing Holder, the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Mortgage Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Special Servicer or the Trustee shall make its determination (based on information provided by the applicable Outside Servicer and Outside Special Servicer has determined Servicer) that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to that has been made on such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust Loan (or any successor REO Mortgage Loan with respect thereto) is ora Nonrecoverable Advance or that any proposed P&I Advance would, if made, would be constitute a Nonrecoverable P&I Advance may be with respect to such Outside Serviced Mortgage Loan independently of any determination made independently from any determinations (by the applicable Outside Servicer, the applicable Outside Special Servicer or the absence of any determinations) made Outside Trustee, as the case may be, under the applicable Other Pooling and Outside Servicing Agreement regarding nonrecoverability in respect of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.Companion
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (COMM 2019-Gc44 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2019-Gc43), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2019-Gc42)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator (A) for deposit in the Lower-Tier REMIC Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in during the Prepayment Collection Period relating to such Distribution Date (or, in the case of an Outside Serviced Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator) and (B) for deposit in the 360 Spear REMIC Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Trust Subordinate Companion Loan received by the Master Servicer during the Collection period relating to such Distribution Date;
(ii) remit to the Certificate Administrator (A) for deposit in the Lower-Tier REMIC Distribution Account an amount equal to the Aggregate Pooled Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (e) of the definition of “Aggregate Pooled Available Funds”); and (B) for deposit in the 360 Spear REMIC Distribution Account an amount equal to the 360 Spear Available Funds applicable to the Trust Subordinate Companion Loan (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “360 Spear Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance (A) with respect to the Pooled Certificates by remittance to the Certificate Administrator for deposit into the Lower-Tier REMIC Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any Outside Serviced Mortgage Loan, any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received by the Master Servicer on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as (or, in the case of an Outside Serviced Mortgage Loan, was not received by the Master Servicer on such Mortgage Loan as of the close of business on the Business Day immediately preceding) such Master Servicer Remittance Date) and (B) with respect to the Loan-Specific Certificates by remittance to the Certificate Administrator for deposit into the 360 Spear REMIC Distribution Account, in an amount equal to the Applicable Monthly Payment for the Trust Subordinate Companion Loan to the extent such amount was not received by the Master Servicer on the Trust Subordinate Companion Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date, except that, in each case, the portion of any such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan or Trust Subordinate Companion Loan, as applicable, shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC® and the portion of such P&I Advance equal to the Asset Representations Reviewer Ongoing Fee (other than with respect to the Trust Subordinate Companion Loan), the Operating Advisor Fee or the Trustee/Certificate Administrator Fee, to the extent the subject fee remains unpaid to the applicable party hereunder, shall be deposited in the Collection Account or the applicable Loan Combination Custodial Account, as applicable, for payment to such party;
(v) remit to the Certificate Administrator, as compensation for it and the Trustee, the Trustee/Certificate Administrator Fee for the related Distribution Date out of the amounts from which it is payable;
(vi) remit to the Certificate Administrator for deposit in the Excess Liquidation Proceeds Reserve Account an amount equal to the Excess Liquidation Proceeds received during the related Collection Period (or, in the case of an Outside Serviced Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®if any; and
(vvii) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion LoansLoans (other than the Trust Subordinate Companion Loan) or any REO Companion Loans (other than any successor REO Companion Loan with respect to the Trust Subordinate Companion Loan). The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan or Trust Subordinate Companion Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan or Trust Subordinate Companion Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan or Trust Subordinate Companion Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier REMIC Distribution Account or the 360 Spear REMIC Distribution Account, as applicable, in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee Trustee, any applicable Directing Holder and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) if it is an applicable Consulting Party, notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and if the Special Servicer determines that such P&I Advance is a Nonrecoverable P&I Advance, such determination shall be conclusive and binding on the Master Servicer and the Trustee, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Trust Loan. Within 2 Business Days of making a P&I Advance on any Mortgage Loan that is part of a Loan Combination, the Master Servicer or the Trustee, as applicable, shall provide written notice of the amount of such P&I Advance to (i) if such Mortgage Loan is part of a Serviced Loan Combination, the related Other Servicer, Other Special Servicer and Other Trustee of each Other Securitization Trust that holds a related Serviced Companion Loan, if any, or (ii) if such Mortgage Loan is part of an Outside Serviced Loan Combination, the related Outside Servicer, Outside Special Servicer and Outside Trustee of the related Outside Securitization Trust. With respect to P&I Advances and each Outside Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Outside Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence any applicable Directing Holder and continuance of a CCR Consultation Termination Event)Consulting Party, the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Benchmark 2021-B26 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2021-B25 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2021-B24 Mortgage Trust)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside a Non-Serviced Trust Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;; and
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination immediately preceding Due Date (without regard to any grace period) in (and which delinquent payment has not been cured as of the same month as Business Day immediately preceding such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, Charges or delinquent Monthly Payments monthly payments on the any Companion LoansLoan. The amount of interest required to be advanced in respect of delinquent payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. To the extent required under the related Co-Lender Agreement, if a P&I Advance is made with respect to any Mortgage Loan with a related Serviced Companion Loan, the Master Servicer or Trustee shall notify the Companion Loan Holder(s) and the Special Servicer (and the related Other Master Servicer and Other Special Servicer, if applicable) of the aggregate amount of P&I Advances made with respect to such Mortgage Loan within two (2) Business Days of making such advance. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole Loan Combination 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;
(B) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Non-Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Companion Loan Holder(s) (and the related Other Master Servicer and Other Special Servicer, if applicable), in the case of any Serviced Whole Loan, to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, and 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Non-Serviced Trust Mortgage Loan, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside Non-Serviced Trust Mortgage Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the Trustee and the related Outside Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMoody’s, Fitch Fitch, KBRA or KBRA Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMoody’s, Fitch Fitch, KBRA or KBRAMorningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced applicable Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 4 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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator Trustee for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the a Mortgage Loans Loan (but not a Serviced Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator Trustee for deposit in (a) the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “"Available Funds”");; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(ivA) make a P&I Advance by remittance (other than with respect to the Certificate Administrator for Non-Serviced Mortgage Loan) by deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan Loans related to a Loan CombinationServiced Whole Loan, but not a the related Companion LoanLoan(s)) to the extent such amounts were not received on such Mortgage Loan as of prior to the Business Day immediately preceding the Master Servicer Remittance Date (and therefore are not included in the remittance described in the preceding clause (ii)) and (B) with respect to the Non-Serviced Mortgage Loan, make a P&I Advance only to the extent that the Master Servicer in each case does not receive from the Other Master Servicer under the Other Pooling Agreement, by the close of business on the related Determination Date (without regard to any grace period) Date, an aggregate remittance in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance an amount equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan Applicable Monthly Payment in the form of a remittance thereof and/or in the form of a principal and interest advance thereof, which advance shall be made by deposit into the Lower-Tier Distribution Account. The Master Servicer shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator Trustee shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator Trustee has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement4.06(iii), the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its sole discretion exercised in good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b)faith. In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 '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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, Servicer and the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person's determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standardfaith, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) . The Trustee, in determining whether or not an Advance previously made is, or a proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject to the standards applicable to the Master Servicer hereunder. The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s 's determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan is a Nonrecoverable P&I Advance. The Master Servicer, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside the Non-Serviced Trust LoanMortgage Loans, the Master Servicer and the Trustee shall be entitled to rely on the “"appraisal reduction amount” " calculated by the related Outside Special Servicer applicable special servicer or the related Outside Servicer applicable master servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s 's Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee related Companion Loan Noteholders (unless it is and the Person making related subsequent master servicer and special servicer, if applicable, in the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder case of any related Serviced Pari Passu Companion Loan or its Companion Loan Holder Representative (included in the case of a Pari Passu Loan Combinationrelated Whole Loan), 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, 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. The Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X unreimbursed P&I Advances.
(c) With respect to each Outside . If the Master Servicer receives written notixx xxxx x xxxxxx servicer of a Serviced Trust Loan, if (1) the related Outside Servicer has determined Companion Loan in connection with a securitization of a Pari Passu Companion Loan that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion LoanP&I advance, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “"nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if " the Master Servicer or the Special Servicer has determined that a shall not be obligated to make any additional P&I Advance Advances with respect to the Outside Serviced Trust Mortgage Loan in the related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Whole Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement such master servicer and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loanthe Non-Trust Mortgage Interest) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan Loans related to a the Loan Combination, but not a Companion Loanthe Non-Trust Mortgage Interest) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall Date (and therefore are not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit included in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit remittance described in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. preceding clause (ii)); Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.Maintenance
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in during the Prepayment Collection Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account an amount equal to the Aggregate Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (de) of the definition of “Aggregate Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier REMIC Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received by the Master Servicer on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as (or, in the case of an Outside Serviced Mortgage Loan, was not received by the Master Servicer on such Mortgage Loan as of the close of business on the Business Day immediately preceding) such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®® and the portion of such P&I Advance equal to the Asset Representations Reviewer Ongoing Fee, the Operating Advisor Fee or the Trustee/Certificate Administrator Fee, to the extent the subject fee remains unpaid to the applicable party hereunder, shall be deposited in the Collection Account or the applicable Loan Combination Custodial Account, as applicable, for payment to such party;
(v) remit to the Certificate Administrator, as compensation for it and the Trustee, the Trustee/Certificate Administrator Fee for the related Distribution Date out of the amounts from which it is payable;
(vi) remit to the Certificate Administrator for deposit in the Excess Liquidation Proceeds Reserve Account an amount equal to the Excess Liquidation Proceeds received during the related Collection Period (or, in the case of an Outside Serviced Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator), if any; and
(vvii) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier REMIC Distribution Account Account, in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee Trustee, any applicable Directing Holder and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) if it is an applicable Consulting Party, notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. Within 2 Business Days of making a P&I Advance on any Mortgage Loan that is part of a Loan Combination, the Master Servicer or the Trustee, as applicable, shall provide written notice of the amount of such P&I Advance to (i) if such Mortgage Loan is part of a Serviced Loan Combination, the related Other Servicer, Other Special Servicer and Other Trustee of each Other Securitization Trust that holds a related Serviced Companion Loan, if any, or (ii) if such Mortgage Loan is part of an Outside Serviced Loan Combination, the related Outside Servicer, Outside Special Servicer and Outside Trustee of the related Outside Securitization Trust. With respect to P&I Advances and each Outside Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Outside Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 3 contracts
Samples: Agreement Between Noteholders (Benchmark 2020-B20 Mortgage Trust), Agreement Between Noteholders (Benchmark 2020-B19 Mortgage Trust), Agreement Between Noteholders (DBJPM 2020-C9 Mortgage Trust)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Outside Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Outside Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Outside Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs3), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-Gc33), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-P1)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationServiced Whole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®;
(v) remit to CCRE, or any successor, assignee or designee of all or a portion CCRE’s right to receive the CCRE Strip, the CCRE Strip with respect to the related Collection Period; and
(vvi) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix3.06(a)(x) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount of interest required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Non-Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside an Other Special Servicer or the related Outside an Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Non-Serviced Trust Mortgage Loan, if (1) the related Outside an Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside each Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I Advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside an Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside each Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside an Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside Non-Serviced Trust Mortgage Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Trustee and an Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by or on behalf of the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch XXXX or KBRA DBRS to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch XXXX or KBRADBRS, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to CCRE, or any successor, assignee or designee of all or a portion CCRE’s right to receive the Certificate Administrator for deposit in CCRE Strip, the Excess Interest Distribution Account all Excess Interest for CCRE Strip with respect to the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this AgreementPeriod. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount of interest required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.Collection
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc26), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc25), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc23)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;; and
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationServiced Whole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount of interest required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside the Non-Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside an Other Special Servicer or the related Outside an Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside the Non-Serviced Trust Mortgage Loan, if (1) the related Outside an Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside the Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside an Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside an Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside the Non-Serviced Trust Mortgage Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Trustee and an Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to CCRE, or any successor, assignee or designee of all or a portion of CCRE’s right to receive the Certificate Administrator for deposit in CCRE Strip, the Excess Interest Distribution Account all Excess Interest for CCRE Strip with respect to the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this AgreementPeriod. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (and, prior to the occurrence and continuance of a CCR Consultation Termination Event) , the Controlling Class Representative notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any ). Any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the . The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA DBRS to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRADBRS, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside a Non-Serviced Trust Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination immediately preceding Due Date (without regard to any grace period) in (and which delinquent payment has not been cured as of the same month as Business Day immediately preceding such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix3.06(a)(x) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, Charges or delinquent Monthly Payments monthly payments on the any Companion LoansLoan. The amount of interest required to be advanced in respect of delinquent payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. To the extent required under the related Co-Lender Agreement, if a P&I Advance is made with respect to any Mortgage Loan with a related Serviced Companion Loan, the Master Servicer or Trustee shall notify the Other Master Servicer and the Other Trustee of the amount of P&I Advance made with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated permitted to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole Loan Combination 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;
(B) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Non-Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances. With respect to each Whole Loan, if the Master Servicer, Special Servicer or Trustee has determined that a P&I Advance with respect to such Mortgage Loan, would be or has become a Nonrecoverable Advance, the Master Servicer shall provide each Other Master Servicer, Other Special Servicer and Other Trustee written notice of such determination together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability within the time period required by the related Co-Lender Agreement.
(c) With respect to each Outside Non-Serviced Trust Mortgage Loan, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xDBRS, Fitch KBRA, Xxxxx’x or KBRA Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xDBRS, Fitch KBRA, Xxxxx’x or KBRAMorningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced applicable Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (ii) a fraction, the numerator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicer, the Master Servicer or the Trustee as to whether a P&I 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Controlling Class Representative Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the Master Servicer shall provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Controlling Class Representative Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMxxxx’x, Fitch DBRS or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMxxxx’x, Fitch DBRS or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loanthe Non-Trust Mortgage Interest) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan Loans related to a the Loan Combination, but not a Companion Loanthe Non-Trust Mortgage Interest) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall Date (and therefore are not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit included in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit remittance described in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. preceding clause (ii)); Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person in its commercially reasonable judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(bStandard). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and and, during a Subordinate Control Period or a Collective Consultation Period, the Controlling Subordinate Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business commercially reasonable judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Subordinate Class Representative (prior to the occurrence and continuance of during a CCR Subordinate Control Period or a Collective Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan CombinationPeriod), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x[______], Fitch [______] or KBRA [______] to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x[______], Fitch [______] or KBRA[______], as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Non-Trust Mortgage Interest Holder and the applicable master servicer of any Serviced Companion Loanthe Non-Trust Mortgage Interest.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RBS Commercial Funding Inc.), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to (A) the Available Funds applicable for the related Distribution Date then on deposit in the Collection Account and (B) any Compensating Interest Payment and/or amount from the 10 Xxxxxxx Xxxxx Xxxxx Xxxxxxx Account required to the Mortgage Loans (other than the amounts referred be transferred on such Master Servicer Remittance Date pursuant to in clause (iv) below and clause (d) Section 3.13 of the definition of “Available Funds”)this Agreement;
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(viv) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix3.06(a)(x) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would 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 or (ii) Standard, and in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . Furthermore, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (and, prior to the occurrence and continuance of a CCR Consultation Termination Event) , the Controlling Class Representative notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I an 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Interest Holder and the applicable master servicer of any Serviced Companion LoanInterest.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) and any related Loan REMIC Regular Interests received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan, any related Loan REMIC Regular Interest and any Mortgage Loan Loans related to a Loan Combinationthe Whole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and;
(viv) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement; and
(v) remit to the Certificate Administrator for deposit in the Loan REMIC Residual Distribution Account all amounts distributable in respect of the Loan REMIC Residual Interests for the related Distribution Date after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person in its commercially reasonable judgment (or (i) in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (and, prior to the occurrence and continuance of a CCR Consultation Termination Event) , the Controlling Class Representative notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMxxxx’x, Fitch DBRS or KBRA Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMxxxx’x, Fitch DBRS or KBRAMorningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Interest Holder and the applicable master servicer of any Serviced Companion LoanInterest.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer with respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may shall deliver to the Master Servicer, the Trustee and the Controlling Class Representative (and, prior to the occurrence and continuance of a CCR Consultation Termination Event) , the Controlling Class Representative notice of any such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although Trustee shall conclusively rely on such determination by the Special Servicer may determine whether that a P&I Advance is a Nonrecoverable Advance, Advance (but this statement shall not be construed to entitle the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination that a P&I Advance constitutes or would constitute a Nonrecoverable Advance; provided that this sentence will not be construed to limit Advance and in no event shall a determination by the Special Servicer’s right to make a determination Servicer that a P&I Advance to be made (or contemplated to be made) would be, or a previously made or proposed P&I Advance is, a Nonrecoverable Advance, as described in this Section 4.06;
(E) any non-recoverability determination by would be recoverable be binding on the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled required to rely, conclusively, on any determination by the Master Servicer or Special Servicer once such determination has been made that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled required to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, S&P or Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch S&P or KBRAFitch, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a the Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan Loans related to a Loan Combinationthe Whole Loan, but not a the Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance DateDate (and therefore are not included in the remittance described in the preceding clause (ii), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®); and
(viv) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person in its commercially reasonable judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(bStandard). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (and, prior to the occurrence and continuance of a CCR Consultation Termination Event) , the Controlling Class Representative notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business commercially reasonable judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xFitch, Fitch Mxxxx’x or KBRA Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xFitch, Fitch Mxxxx’x or KBRAMorningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced the Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(ivA) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (and, prior to the occurrence and continuance of a CCR Consultation Termination Event) , the Controlling Class Representative notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside the Non-Serviced Trust LoanLoans, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside the Non-Serviced Trust LoanLoans, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Pari Passu Companion Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside the Non-Serviced Trust LoanLoans, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Loan, any determination by the Master Servicer for such Non-Serviced Trust Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
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)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;; and
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 [__] p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(ii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 [___] p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. [With respect to P&I Advances and each Outside the Non-Serviced Trust LoanMortgage Loans, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.]
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X unreimbursed P&I Advances.
(c) [With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.]
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x[____], Fitch [____] or KBRA [____] to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x[____], Fitch [____] or KBRA[____], as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Interest Holder and the applicable master servicer of any Serviced Companion LoanInterest.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to such Distribution Date (or, in the case of an Outside a Non-Serviced Trust Mortgage Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator);
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) below and clause (d) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;; and
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the Determination immediately preceding Due Date (without regard to any grace period) in (and which delinquent payment has not been cured as of the same month as Business Day immediately preceding such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, Charges or delinquent Monthly Payments monthly payments on the any Companion LoansLoan. The amount of interest required to be advanced in respect of delinquent payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. To the extent required under the related Co-Lender Agreement, if a P&I Advance is made with respect to any Mortgage Loan with a related Serviced Companion Loan, the Master Servicer or Trustee shall notify the Other Master Servicer and the Other Trustee of the amount of P&I Advance made with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated permitted to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole Loan Combination 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;
(B) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside any Non-Serviced Trust Mortgage Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances. With respect to each Whole Loan, if the Master Servicer, Special Servicer or Trustee has determined that a P&I Advance with respect to such Mortgage Loan, would be or has become a Nonrecoverable Advance, the Master Servicer shall provide each Other Master Servicer, Other Special Servicer and Other Trustee written notice of such determination together with such reports that the Master Servicer delivered to the Special Servicer or Trustee in connection with notification of its determination of nonrecoverability within the time period required by the related Co-Lender Agreement.
(c) With respect to each Outside any Non-Serviced Trust Mortgage Loan, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xMoody’s, Fitch Fitch, KBRA or KBRA Morningstar to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’xMoody’s, Fitch Fitch, KBRA or KBRAMorningstar, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced applicable Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSAIL 2015-C4 Commercial Mortgage Trust)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;; and
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan Combination, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount of interest required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside the Non-Serviced Trust LoanMortgage Loans, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xDBRS, Fitch KBRA or KBRA Xxxxx’x to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by DBRS, KBRA or Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj14)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator Trustee for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion LoanInterest) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator Trustee for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator Trustee for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan Loans related to a Loan CombinationWhole Loan, but not a the related Companion LoanInterest(s)) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance DateDate (and therefore are not included in the remittance described in the preceding clause (ii), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan ). The Master Servicer shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator Trustee shall notify the Master Servicer and the Trustee by telephone if as of 3:00 [___] p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator Trustee has not received the amount of a required P&I Advance hereunder. If as of 11:00 [___] a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 [___] p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person in its good faith business judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(bStandard). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and and, prior to the occurrence of a Consultation Termination Event, the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standardfaith, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) . The Trustee, in determining whether or not an Advance previously made is, or a proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject to the standards applicable to the Master Servicer hereunder. The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor If the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined received notice that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide is acting as a master servicer in a commercial loan securitization that was rated by [_____] within the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch or KBRA twelve month period prior to the effect that date of determination, and [_____] has downgraded or withdrawn the then-current rating on any class of mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, master servicer of such commercial mortgage securities as the sole or material factor in such rating action, and such notice is not rescinded within 60 daysfactor, then the Trustee, the Trustee or Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administratorother, and the Certificate Administrator Trustee shall promptly notify the Serviced Companion Loan Holder Interest Representative and the applicable master servicer of any Serviced Companion LoanInterest.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a the Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan or, in the event of a default in the payment of amounts due on the Maturity Date of a Mortgage Loan, the amount equal to the Assumed Monthly Payment (including any REO Mortgage Loan and any Mortgage Loan Loans related to a Loan Combinationthe Split-Loan, but not a the Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance DateDate (and therefore are not included in the remittance described in the preceding clause (ii), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan ). The Master Servicer shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person in its good faith business judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(bStandard). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and and, during a Subordinate Control Period or a Collective Consultation Period, the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standardfaith, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) . The Trustee, in determining whether or not an Advance previously made is, or a proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject to the standards applicable to the Master Servicer hereunder. The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of during a CCR Subordinate Control Period or a Collective Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan CombinationPeriod), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor If the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two received (2a) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x, Fitch [____] or KBRA [______] to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x, Fitch [____] or KBRA, as applicable, [______] to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, Servicer as the sole or material factor in such rating action, and such notice is not rescinded within 60 days; or (b) notice that the Master Servicer is acting as a master servicer in a commercial loan securitization that was rated by [______], [______] or [______] within the twelve month period prior to the date of determination, and [______], [______] or [______] has downgraded or withdrawn the then-current rating on any class of mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such Master Servicer as master servicer of such commercial mortgage securities as the sole or material factor, then the Trustee, the Trustee or Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer Master Servicer of any Serviced the Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CCRE Commercial Mortgage Securities, L.P.)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationServiced Whole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix3.06(a)(x) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount of interest required to be advanced in respect of delinquent payments of interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside the Non-Serviced Trust LoanMortgage Loans, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside an Other Special Servicer or the related Outside an Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if (1) the related Outside an Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the applicable Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside an Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside an Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Trustee and an Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’xDBRS, Fitch KBRA or KBRA Xxxxx’x to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by DBRS, KBRA or Xxxxx’x, Fitch or KBRA, as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Holder and the applicable master servicer of any Serviced Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj16)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iv) 0 below and clause (dc) of the definition of “Available Funds”);
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;; and
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan related to a Loan CombinationWhole Loan, but not a Companion Loan) to the extent such amounts were not received on such Mortgage Loan as of the close of business on the corresponding Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of delinquent interest on any Mortgage Loan as to which an Appraisal Reduction Amount exists will equal (i) the amount of interest required to be advanced by the Master Servicer without giving effect to such Appraisal Reduction Amount less (ii) an amount equal to the product of (ix) the amount otherwise required to be advanced by the Master Servicer with respect to such delinquent payments payment of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 [__] p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(ii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 [___] p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither the Master Servicer nor the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer, the Special Servicer or the Trustee, as applicable, or the Special Servicer Trustee determines that such Advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Master Servicer, the Master Special Servicer or the Trustee that any proposed P&I 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 or (ii) in the case of the Trustee, in accordance with its good faith business judgment, and and, shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(b). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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 Whole 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) . 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 for such purposes;
(C) the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall be conclusive and binding on the Master Servicer and the Trustee;
(D) although the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 that a P&I 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 P&I 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 4.06;
(E) any non-recoverability . The determination by the Master Servicer or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 with respect to any Mortgage Loan (or with respect to any successor REO Mortgage Loan with respect to any of the recoverability of foregoing), would constitute a Nonrecoverable P&I Advances Advance, shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) ; provided that this sentence shall not be construed to entitle the Master Special Servicer shall provide notice to the Trustee on reverse any other authorized Person’s determination, or prior to the Master Servicer Remittance Date of prohibit any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the Trustee shall be entitled to relyother authorized Person from making a determination, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, Advance constitutes or would be constitute a Nonrecoverable Advance; provided, however, that if . If the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future Distribution Date with respect to any Specially Serviced Loan is a Nonrecoverable P&I Advance, and the Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. [With respect to P&I Advances and each Outside the Non-Serviced Trust LoanMortgage Loans, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Other Special Servicer or the related Outside Other Master Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.]
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan Combination), 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, 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 (12) 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx X&X Advances.
(c) [With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if (1) the related Outside Other Master Servicer has determined that a proposed debt service advance P&I Advance (as defined in the Other Pooling and Servicing Agreement) with respect to such Outside a Non-Serviced Trust Loan or a related Outside Serviced Companion Mortgage Loan, if made, or any outstanding P&I advance previously made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Other Master Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside a Non-Serviced Trust Loan related to such related Outside Serviced Companion Mortgage Loan would be a Nonrecoverable P&I Advance, then neither none of the Master Servicer nor or the Trustee shall make any additional P&I Advance with respect to such Outside Non-Serviced Trust Mortgage Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Other Master Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance P&I Advance or P&I Advance would not be a “nonrecoverable advance.” With respect to each Outside the Non-Serviced Trust LoanMortgage Loans, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan Mortgage Loan, would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Other Master Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside any Non-Serviced Trust Mortgage Loan, any determination by the Master Servicer for such Non-Serviced Mortgage Loan that any P&I Advance made or to be made with respect to such Outside Non-Serviced Trust 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 under by the applicable Other Pooling and Servicing Agreement related Companion Loan Holder regarding nonrecoverability of debt service advances on the related Outside Non-Serviced Companion Loan.]
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x[____], Fitch [____] or KBRA [____] to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x[____], Fitch [____] or KBRA[____], as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Loan Interest Holder and the applicable master servicer of any Serviced Companion LoanInterest.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
Remittances; P&I Advances. (a) On the Master Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall:
(i) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Yield Maintenance Charges applicable to the Mortgage Loans (but not a Companion the Non-Trust Mortgage Loan) received by the Master Servicer in the Prepayment Period relating to preceding such Distribution Date (or, in the case of an Outside Serviced Trust Loan, received by the Master Servicer as of the close of business on the Business Day immediately preceding the applicable Master Servicer Remittance Date and not previously so remitted to the Certificate Administrator)Date;
(ii) remit to the Certificate Administrator for deposit in the Lower-Tier Distribution Account an amount equal to the Available Funds applicable to the Mortgage Loans (other than the amounts referred to in clause (iviii) below and clause (d) of the definition of “Available Funds”);; and
(iii) remit to CREFC® the CREFC® Intellectual Property Royalty License Fee;
(iv) make a P&I Advance by remittance to the Certificate Administrator for deposit into the Lower-Tier Distribution Account, in an amount equal to the sum of the Applicable Monthly Payments for each Mortgage Loan (including any REO Mortgage Loan and any Mortgage Loan Loans related to a the Loan Combination, but not a Companion the Non-Trust Mortgage Loan) to the extent such amounts were not received on such Mortgage Loan as of prior to the close of business on Business Day immediately preceding the Determination Date (without regard to any grace period) in the same month as such Master Servicer Remittance Date), except that the portion of such P&I Advance equal to the CREFC® Intellectual Property Royalty License Fee for each such Mortgage Loan shall Date (and therefore are not be remitted to the Certificate Administrator but shall instead be remitted to CREFC®; and
(v) remit to the Certificate Administrator for deposit included in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit remittance described in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a)(ii) through Section 3.06(a)(ix) of this Agreement. preceding clause (ii)); Neither the Master Servicer nor the Trustee shall be required or permitted to make an advance for Balloon Payments, Default Interest, Excess Interest or Yield Maintenance Charges, or delinquent Monthly Payments on the Companion Loans. The amount required to be advanced in respect of delinquent payments of interest Applicable Monthly Payments on any Mortgage Loan as Loans that have been subject to which an Appraisal Reduction Amount exists Event will equal the product of (i) the amount otherwise required to be advanced by the Master Servicer with without giving effect to such Appraisal Reduction Amounts less (ii) an amount equal to the product of (x) the amount required to be advanced by the Master Servicer in respect to delinquent payments of interest without giving effect to such Appraisal Reduction Amounts, and (iiy) a fraction, the numerator of which is the Stated Principal Balance of Appraisal Reduction Amount with respect to such Mortgage Loan as of the last day of the related Collection Period, reduced by such Appraisal Reduction Amount, and the denominator of which is the Stated Principal Balance of such Mortgage Loan as of the last day of the related Collection Period. Appraisal Reduction Amounts shall not affect the principal portion of any P&I Advances. Any amount advanced by the Master Servicer pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement shall constitute a P&I Advance for all purposes of this Agreement and the Master Servicer shall be entitled to reimbursement (with interest at the Advance Rate). The Special Servicer shall have no obligation to make any P&I Advance. The Certificate Administrator shall notify the Master Servicer and the Trustee by telephone if as of 3:00 p.m., New York City time, on the Master Servicer Remittance Date, the Certificate Administrator has not received the amount of a required P&I Advance hereunder. If as of 11:00 a.m., New York City time, on any Distribution Date the Master Servicer shall not have made the P&I Advance required to have been made on the related Master Servicer Remittance Date pursuant to Section 4.06(a)(iv4.06(a)(iii) of this Agreement, the Certificate Administrator shall notify the Trustee and the Trustee shall no later than 1:00 p.m., New York City time, on such Business Day deposit into the Lower-Tier Distribution Account in immediately available funds an amount equal to the P&I Advances otherwise required to have been made by the Master Servicer. Neither None of the Master Servicer nor or the Trustee shall be obligated to make a P&I Advance as to any Monthly Payment on any date on which a P&I Advance is otherwise required to be made by this Section 4.06 if the Master Servicer or the Trustee, as applicable, or the Special Servicer determines that such Advance advance will be a Nonrecoverable Advance. The determination by any Person with an obligation hereunder to make P&I Advances that it has made (or in the case of a determination by the Special Servicer, that the Master Servicer or the Trustee has made) a Nonrecoverable Advance or the determination by the Special Servicer, the Master Servicer or the Trustee that any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance, shall be made by such Person in its commercially reasonable judgment (i) or in the case of the Master Servicer or the Special Servicer, in accordance with the Servicing Standard or (ii) in the case of the Trustee, in its good faith business judgment, and shall be evidenced by an Officer’s Certificate as set forth in Section 4.06(bStandard). In connection with a determination by the Special Servicermaking such recoverability determination, the Master Servicer or the Trustee as to whether a P&I 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) . 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 for such purposes;
(C) . In addition, the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any proposed P&I Advance, if made, would be a Nonrecoverable Advance or that any outstanding P&I Advance is a Nonrecoverable Advance and may deliver to the Master Servicer, the Trustee and and, during a Subordinate Control Period or a Collective Consultation Period, the Controlling Subordinate Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) notice of such determination, which determination shall will be conclusive and binding on the Master Servicer and the Trustee;
Trustee (D) although but this statement shall not be construed to entitle the Special Servicer may determine whether a P&I Advance is a Nonrecoverable Advance, the Special Servicer will have no right to (i) make an affirmative determination that any P&I 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 other authorized Person’s determination, or to prohibit the Master Servicer or the Trustee any such other authorized Person from making a determination determination, that a P&I 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 P&I 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 4.06;
(E) any non-recoverability determination by the Master Servicer or the Special Servicer pursuant to this Section 4.06 with respect to the recoverability of P&I Advances shall be conclusive and binding on the Master Servicer (in the case of such a determination by the Special Servicer) and the Trustee;
(F) the ). The Master Servicer shall be required to provide notice to the Trustee on or prior to the Master Servicer Remittance Date of any such non-recoverability determination made by the Master Servicer on or prior to such date;
(G) the . The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer or Special Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however, that if the Master Servicer has failed to make a P&I Advance for reasons other than a determination by the Master Servicer or Special Servicer that such Advance would be a Nonrecoverable Advance, the Trustee shall make such advance within the time periods required by this Section 4.06 unless the Trustee, in its good faith business commercially reasonable judgment, or the Special Servicer, in accordance with the Servicing Standard, makes a determination prior to the times specified in this Section 4.06 that such advance would be a Nonrecoverable Advance;
(H) the . The Special Servicer shall report, promptly upon making a determination contemplated in this paragraph, to the Master Servicer the Special Servicer’s determination as to whether any P&I Advance made with respect to any previous Distribution Date or required to be made with respect to a future such Distribution Date with respect to any Specially Serviced Mortgage Loan is a Nonrecoverable P&I Advance, and the . The Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; and
(I) notwithstanding the foregoing, the Trustee may conclusively rely upon any determination by the Master Servicer or the Special Servicer that any P&I Advance would be recoverable (unless a non-recoverability determination has been made by the other servicer in accordance with clause (E) above which is binding on the Trustee), and the Master Servicer may conclusively rely upon any determination by the Special Servicer that any P&I Advance would be recoverable. The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances it makes (together with interest thereon) to the extent permitted pursuant to Section 3.06(a)(ii) of this Agreement and each of the Master Servicer and Special Servicer hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the related Mortgagors to the extent permitted by applicable law and the related Mortgage Loan. With respect to P&I Advances and each Outside Serviced Trust Loan, the Master Servicer and the Trustee shall be entitled to rely on the “appraisal reduction amount” calculated by the related Outside Special Servicer or the related Outside Servicer in accordance with the terms of the applicable Other Pooling and Servicing Agreement.
(b) The determination by the Master Servicer, the Trustee or the Special Servicer that a P&I Advance has become a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made pursuant to this Section 4.06 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 P&I Advance, shall be evidenced by an Officer’s Certificate delivered on or prior to the next Master Servicer Remittance Date to the Trustee (unless it is the Person making the determination), the Controlling Subordinate Class Representative (prior to the occurrence and continuance of during a CCR Subordinate Control Period or a Collective Consultation Termination Event), the holder of any related Pari Passu Companion Loan or its Companion Loan Holder Representative (in the case of a Pari Passu Loan CombinationPeriod), 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, 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 Master Servicer and the Special Servicer shall consider Unliquidated Advances with respect to prior P&I Advances for the purpose of nonrecoverability determinations as if such amounts were xxxxxxxxxxxx uxxxxxxxxxxx X&X Advances.
(c) With respect to each Outside Serviced Trust Loan, if (1) the related Outside Servicer has determined that a proposed debt service advance with respect to such Outside Serviced Trust Loan or a related Outside Serviced Companion Loan, if made, would be, or any outstanding debt service advance previously made with respect to such Outside Serviced Companion Loan is, as applicable, a “nonrecoverable advance,” and the related Outside Servicer has provided written notice of such determination to the Master Servicer, or (2) if the Master Servicer or the Special Servicer has determined that a P&I Advance with respect to the Outside Serviced Trust Loan related to such related Outside Serviced Companion Loan would be a Nonrecoverable P&I Advance, then neither the Master Servicer nor the Trustee shall make any additional P&I Advance with respect to such Outside Serviced Trust Loan until the Master Servicer or the Special Servicer, as applicable, has consulted with the related Outside Servicer under the applicable Other Pooling and Servicing Agreement and they agree that circumstances with respect to such Mortgage Loans have changed such that a proposed future debt service advance would not be a “nonrecoverable advance.” With respect to each Outside Serviced Trust Loan, if the Master Servicer has determined that a proposed P&I Advance with respect to such mortgage loan would be a Nonrecoverable Advance, the Master Servicer shall provide the related Outside Servicer written notice of such determination within two (2) Business Days after such determination was made. In connection with each Outside Serviced Trust Loan, any determination by the Master Servicer that any P&I Advance made or to be made with respect to such Outside Serviced Trust 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 under the applicable Other Pooling and Servicing Agreement regarding nonrecoverability of debt service advances on the related Outside Serviced Companion Loan.
(d) If the Trustee, the Master Servicer or the Special Servicer has received written notice from Xxxxx’x[______], Fitch [______] or KBRA [______] to the effect that continuation of the Master Servicer or the Special Servicer in such capacity would result in the downgrade, qualification or withdrawal of any rating then assigned by Xxxxx’x[______], Fitch [______] or KBRA[______], as applicable, to any Class of Certificates and citing servicing concerns with such Master Servicer or Special Servicer, as applicable, as the sole or material factor in such rating action, and such notice is not rescinded within 60 days, then the Trustee, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the other such parties and the Certificate Administrator, and the Certificate Administrator shall promptly notify the Serviced Companion Non-Trust Mortgage Loan Holder and the applicable master servicer of any Serviced Companion the Non-Trust Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Barclays Commercial Mortgage Securities LLC)
