Additional Obligations of the Master Servicer and the Special Servicer. (a) In connection with each Adjustable Rate Mortgage Loan (and, if and to the extent applicable, any successor REO Loan), the Master Servicer shall calculate adjustments in the Mortgage Rate and the Monthly Payment and shall notify the Mortgagor of such adjustments, all in accordance with the Mortgage Note and applicable law. In the event the Index for any Adjustable Rate Mortgage Loan (or successor REO Loan) is not published or is otherwise unavailable, the Master Servicer shall select a comparable alternative index with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no direct control, which is readily verifiable and which is acceptable under the terms of the related Mortgage Note. (b) The Master Servicer and the Special Servicer, as applicable, shall each deliver to the other and to the Trustee (for inclusion in the Mortgage File) copies of all Appraisals, environmental reports and engineering reports (or, in each case, updates thereof) obtained with respect to any Mortgaged Property or REO Property. (c) No more frequently than once per calendar month, the Special Servicer may require the Master Servicer, and the Master Servicer shall be obligated, subject to the second following paragraph, to reimburse the Special Servicer for any Servicing Advances made by but not previously reimbursed to the Special Servicer, and to pay the Special Servicer interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of Advance Interest shall be made within ten (10) days of the request therefor by wire transfer of immediately available funds to an account designated by the Special Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of any Servicing Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(c), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as the Special Servicer originally made such Advance, and accordingly, the Master Servicer shall be entitled to reimbursement for such Advance, together with interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Servicing Advance. Notwithstanding anything to the contrary contained in this Agreement, if the Special Servicer is required under this Agreement to make any Servicing Advance but does not desire to do so, the Special Servicer may, in its sole discretion, request that the Master Servicer make such Advance, such request to be made in writing and in a timely manner that does not materially and adversely affect the interests of any Certificateholder. Subject to the following paragraph, the Master Servicer shall have the obligation to make any such Servicing Advance that it is requested by the Special Servicer to make within ten days of the Master Servicer's receipt of such request. The Special Servicer shall be relieved of any obligations with respect to an Advance that it requests the Master Servicer to make (regardless of whether or not the Master Servicer shall make such Advance). The Master Servicer shall be entitled to reimbursement for any Servicing Advance made by it at the direction of the Special Servicer, together with Advance Interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer is entitled with respect to any other Servicing Advance made thereby. If the Special Servicer makes any Servicing Advances in accordance with the terms of this Agreement, the Special Servicer shall notify the Master Servicer in writing within one Business Day of any such Servicing Advance. Notwithstanding the foregoing provisions of this Section 3.20(c), the Master Servicer shall not be required to make at the Special Servicer's direction, or to reimburse the Special Servicer for, any Servicing Advance if the Master Servicer determines in its reasonable, good faith judgment that the Servicing Advance which the Special Servicer is directing the Master Servicer to make or to reimburse to the Special Servicer hereunder either (y) although not characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable Servicing Advance, or (z) the making of such advance was or would be in violation of the Servicing Standard or the terms and conditions of this Agreement. The Master Servicer shall notify the Special Servicer in writing of such determination. Such notice shall not obligate the Special Servicer to make any such proposed Servicing Advance. (d) Upon the earliest of (i) the date on which any Mortgage Loan or the Companion Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of any uncured delinquency in Monthly Payments with respect to any Mortgage Loan or the Companion Loan, (iii) the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Property securing any Mortgage Loan or the Companion Loan, (iv) the 60th day following any bankruptcy or similar proceedings involving a Mortgagor and (v) the date on which the Mortgaged Property securing any Mortgage Loan or the Companion Loan becomes an REO Property (each such Mortgage Loan or the Companion Loan, as the case may be, and any related REO Loan, a "Required Appraisal Loan"), the Special Servicer, shall request and, within 30 days of the occurrence of such event (or such longer period as the Special Servicer is (as certified thereby to the Trustee in writing) diligently and in good faith proceeding to obtain such) obtain an Appraisal of the related Mortgaged Property; provided, however, that such Appraisal shall not be required if an Appraisal of such Mortgaged Property had previously been obtained within the prior twelve months, unless the Special Servicer determines that such previously obtained Appraisal is materially inaccurate. The cost of any such Appraisal shall be covered by, and reimbursable as, a Servicing Advance. With respect to each Required Appraisal Loan (unless such loan has become a Corrected Mortgage Loan and no other Servicing Transfer Event, or other event that would cause the loan to be a Required Appraisal Loan, has occurred), the Special Servicer shall, within 30 days of each anniversary of such loan's becoming a Required Appraisal Loan, order an update of the prior Appraisal (the cost of which will be covered by, and reimbursable as, a Servicing Advance). Based upon such Appraisal, the Special Servicer shall determine and report to the Trustee the Appraisal Reduction Amount, if any, with respect to such loan. The Special Servicer shall deliver a copy of any such Appraisal to the Master Servicer. Notwithstanding the foregoing, if a Required Appraisal Loan has a principal balance of less than $2,000,000, a desktop estimation of value may be substituted for any Appraisal otherwise required pursuant to this Section 3.20(d).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Additional Obligations of the Master Servicer and the Special Servicer. (a) In connection with each Adjustable Rate Mortgage Loan (and, if and to the extent applicable, any successor REO Loan), the Master Servicer shall calculate adjustments in the Mortgage Rate and the Monthly Payment and shall notify the Mortgagor of such adjustments, all in accordance with the Mortgage Note and applicable law. In the event the Index for any Adjustable Rate Mortgage Loan (or successor REO Loan) is not published or is otherwise unavailable, the Master Servicer shall select a comparable alternative index with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no direct control, which is readily verifiable and which is acceptable under the terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable, shall each deliver to the other and to the Trustee (for inclusion in the Mortgage File) copies of all Appraisals, environmental reports and engineering reports (or, in each case, updates thereof) obtained with respect to any Mortgaged Property or REO Property.
(c) No more frequently than once per calendar month, the Special Servicer may require the Master Servicer, and the Master Servicer shall be obligated, subject to the second following paragraph, to reimburse the Special Servicer for any Servicing Advances made by but not previously reimbursed to the Special Servicer, and to pay the Special Servicer interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of Advance Interest shall be made within ten (10) days of the request therefor by wire transfer of immediately available funds to an account designated by the Special Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of any Servicing Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(c3.19(c), the Master Servicer shall 107 for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as the Special Servicer originally made such Advance, and accordingly, the Master Servicer shall be entitled to reimbursement for such Advance, together with interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Servicing Advance. Notwithstanding anything to the contrary contained in this Agreement, if the Special Servicer is required under this Agreement to make any Servicing Advance but does not desire to do so, the Special Servicer may, in its sole discretion, request that the Master Servicer make such Advance, such request to be made in writing and in a timely manner that does not materially and adversely affect the interests of any Certificateholder. Subject to the following paragraph, the Master Servicer shall have the obligation to make any such Servicing Advance that it is requested by the Special Servicer to make within ten days of the Master Servicer's receipt of such request. The Special Servicer shall be relieved of any obligations with respect to an Advance that it requests the Master Servicer to make (regardless of whether or not the Master Servicer shall make such Advance). The Master Servicer shall be entitled to reimbursement for any Servicing Advance made by it at the direction of the Special Servicer, together with Advance Interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer is entitled with respect to any other Servicing Advance made thereby. If the Special Servicer makes any Servicing Advances in accordance with the terms of this Agreement, the Special Servicer shall notify the Master Servicer in writing within one Business Day of any such Servicing Advance. Notwithstanding the foregoing provisions of this Section 3.20(c3.19(c), the Master Servicer shall not be required to make at the Special Servicer's direction, or to reimburse the Special Servicer for, any Servicing Advance if the Master Servicer determines in its reasonable, good faith judgment that the Servicing Advance which the Special Servicer is directing the Master Servicer to make or to reimburse to the Special Servicer hereunder either (y) although not characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable Servicing Advance, or (z) the making of such advance was or would be in violation of the Servicing Standard or the terms and conditions of this Agreement. The Master Servicer shall notify the Special Servicer in writing of such determination. Such notice shall not obligate the Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage Loan or the Companion Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of any uncured delinquency in Monthly Payments with respect to any Mortgage Loan or the Companion Loan, (iii) the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Property securing any Mortgage Loan or the Companion Loan, and (iv) the 60th day following any bankruptcy or similar proceedings involving a Mortgagor and (v) the date on which the Mortgaged Property securing any Mortgage Loan or the Companion Loan becomes an REO Property (each such Mortgage Loan or the Companion Loan, as the case may be, and any related REO Loan, a "Required Appraisal Loan"), the Special Servicer, shall request and, within 30 days of the occurrence of such event (or such longer period as the Special Servicer is (as certified thereby to the Trustee in writing) diligently and in good faith proceeding to obtain such) obtain an Appraisal of the related Mortgaged Property; provided, however, that such Appraisal shall not be required if an Appraisal of such the Mortgaged Property had previously been obtained within the prior twelve months, unless the Special Servicer determines that such previously obtained Appraisal is materially inaccurate. The cost of any such Appraisal shall be covered by, and reimbursable as, a Servicing Advance. With respect to each Required Appraisal Loan (unless such loan has become a Corrected Mortgage Loan and no other Servicing Transfer Event, or other event that would cause the loan to be a Required Appraisal Loan, has occurred), the Special Servicer shall, within 30 days of each anniversary of such loan's becoming a Required Appraisal Loan, order an update of the prior Appraisal (the cost of which will be covered by, and reimbursable as, a Servicing Advance). Based upon such Appraisal, the Special Servicer shall determine and report to the Trustee the Appraisal Reduction Amount, if any, with respect to such loan. The Special Servicer shall deliver a copy of any such Appraisal to the Master Servicer. Notwithstanding the foregoing, if a Required Appraisal Loan has a principal balance of less than $2,000,000, a desktop estimation of value may be substituted for any Appraisal otherwise required pursuant to this Section 3.20(d3.19(d).
(e) The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the aggregate of all Balloon Payment Interest Shortfalls incurred in connection with Balloon Payments received in respect of the Mortgage Pool during the most recently ended Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the sum of (A) the lesser of (i) the aggregate of all Prepayment Interest Shortfalls incurred in connection with Principal Prepayments received in respect of the Mortgage Loans (other than Late Due Date Mortgage Loans) during the most recently ended Collection Period, and (ii) the aggregate Master Servicing Fees received by the Master Servicer during such Collection Period and (B) the aggregate of all Extraordinary Prepayment Interest Shortfalls, if any, incurred in connection with Principal Prepayments received in respect of Late Due Date Mortgage Loans during the most recently ended Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply all Monthly Payments and any other sums due, in accordance with the terms of the related ARD Loan.
(h) Subject to Section 3.20(a)(iv), with respect to all ARD Loans, the Master Servicer and the Special Servicer shall not take any enforcement action with respect to the payment of Excess Interest or principal in excess of the principal component of the constant Monthly Payment, other than request for collection, until the maturity date of the related Mortgage Loan. The foregoing shall not limit the Servicer and Special Servicer's obligation to establish or direct the related Mortgagor to establish a Lock-Box Account pursuant to Section 3.24.
(i) The Master Servicer shall be entitled to waive the application of any provision in any ARD Loan that requires that the property manager of the related Mortgaged Property be discharged if such Mortgage Loan is not paid in full on its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan that upon the occurrence of certain events permits the Master Servicer to apply the proceeds of the release of any earnout reserve to 109 the exercise of a Defeasance Option, the Master Servicer shall only exercise such Defeasance Option in accordance with Section 3.08 of this Agreement.
(k) To the extent consistent with the terms of the applicable Mortgage Loan, the Master Servicer shall exercise its option to apply any proceeds of the release of the related earnout reserve to the prepayment or defeasance, as applicable, of such Mortgage Loan.
(l) Upon the application of the proceeds of the release of any earnout reserve to the prepayment of the related Mortgage Loan, the Master Servicer shall calculate, based upon the Maturity Date, Mortgage Rate and remaining outstanding principal balance of such Mortgage Loan, a revised schedule upon which the remaining amount of principal and interest due upon such Mortgage Loan shall be amortized until its Maturity Date. The Master Servicer shall deliver a copy of such revised amortization schedule to the related Mortgagor with an instruction to thereafter make Monthly Payments in accordance with the revised schedule.
(m) The Master Servicer shall provide written direction to each lessor under a Ground Lease requesting that upon any default by the lessee, notice thereof be provided to the Master Servicer to the extent required by the Ground Lease.
(n) The Master Servicer and the Special Servicer shall take all such action as may be required to comply with the terms and conditions precedent to payment of claims under the Environmental Policy and in order to maintain, in full force and effect, such policy. Neither the Master Servicer nor the Special Servicer shall agree to amend the Environmental Policy unless it shall have obtained Rating Agency Confirmation with respect to such amendment. In addition, the Master Servicer shall notify each Rating Agency of any claim under the Environmental Policy.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Additional Obligations of the Master Servicer and the Special Servicer. (a) In The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account by 1:00 p.m. (New York City time) on each Master Servicer Remittance Date, without any right of reimbursement therefor, a cash payment (a "Compensating Interest Payment") in an amount equal to the sum of :
(i) the lesser of (A) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with Principal Prepayments received (including, in the case of the [Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) during the most recently ended Collection Period with respect to the Mortgage Loans, and (B) the aggregate of (1) that portion of the Master Servicer's Master Servicing Fees for the most recently ended Collection Period that is, in the case of each Adjustable Rate and every Mortgage Loan and REO Loan for which such Master Servicing Fees are being paid in such Collection Period, calculated at ___% per annum, (and, if and to the extent applicable, any successor REO Loan), 2) all Prepayment Interest Excesses received by the Master Servicer shall calculate adjustments in during the Mortgage Rate most recently ended Collection Period and (3) all Net Investment Earnings earned on such Principal Prepayments; provided, however, that if such a Prepayment Interest Shortfall occurs as a result of the Monthly Payment and shall notify Master Servicer's allowing the Mortgagor of such adjustments, all in accordance with the Mortgage Note and applicable law. In the event the Index for Borrower under any Adjustable Rate Serviced Mortgage Loan (or successor REO Loan) is not published or is otherwise unavailable, the Master Servicer shall select a comparable alternative index with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no direct control, which is readily verifiable and which is acceptable under deviate from the terms of the related Mortgage NoteLoan Documents regarding Principal Prepayments (other than (S) subsequent to a material default under the related Mortgage Loan Documents, (T) pursuant to applicable law or a court order, or (U) at the request or with the consent of the Controlling Class Representative), then, for purposes of calculating the Compensating Interest Payment for the subject Collection Period, the rate referred to in clause (B)(1) above shall be ___% per annum (except as to the Mortgage Loans that are, as of the Closing Date, Primary Serviced Mortgage Loans, for which it shall in each case be ___% per annum); and
(ii) the lesser of (A) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with Insurance Proceeds and Condemnation Proceeds received (including, in the case of the [Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) during the most recently ended Collection Period with respect to the Mortgage Loans, and (B) all Net Investment Earnings earned on the portion of such Insurance Proceeds and Condemnation Proceeds that represents an early recovery of principal. The rights of the Certificateholders to offset the aggregate Prepayment Interest Shortfalls shall not be cumulative from Collection Period to Collection Period.
(b) The Master Servicer and No later than 1:00 p.m. New York City time on the first Determination Date that follows the date on which the Special Servicer, as applicable, shall each deliver to the other and to the Trustee (for inclusion in the Mortgage File) copies of all Appraisals, environmental reports and engineering reports (or, in each case, updates thereof) obtained with respect to Servicer makes any Mortgaged Property or REO Property.
(c) No more frequently than once per calendar monthServicing Advance, the Special Servicer may require shall provide the Master Servicer an Officer's Certificate (via facsimile) setting forth the details of the Servicing Advance upon which the Master Servicer shall conclusively rely in reimbursing the Special Servicer, and the . The Master Servicer shall be obligated, subject to out of the second following paragraphMaster Servicer's own funds, to reimburse the Special Servicer for any unreimbursed Servicing Advances Advance (other than a Nonrecoverable Servicing Advance) made by but not previously reimbursed to the Special Servicer, and to pay the Special Servicer with respect to any Specially Serviced Mortgage Loan or Administered REO Property, together with interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and Any such reimbursement, together with any accompanying payment of Advance Interest interest, shall be made within ten (10) days of by the request therefor Master Servicer, by wire transfer of immediately available funds to an account designated by the Special Servicer, no later than the first Master Servicer Remittance Date that is at least three (3) Business Days after the date on which the Master Servicer receives the corresponding Officer's Certificate contemplated by the prior sentence; provided that any such Officer's Certificate received after 1:00 p.m., New York City time, on any particular date shall, for purposes of any such reimbursement, be deemed received on the next succeeding Business Day. Upon the Master Servicer's reimbursement to the Special Servicer of any Servicing Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(c3.19(b), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as the Special Servicer originally actually made such Servicing Advance, and accordingly, the Master Servicer shall be entitled to reimbursement for such Servicing Advance, together with interest thereonthereon in accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Servicing AdvanceAdvance at the time the Special Servicer did. Notwithstanding anything to the contrary contained in any other Section of this Agreement, if the Special Servicer shall notify the Master Servicer whenever a Servicing Advance is required under this Agreement to be made with respect to any Specially Serviced Mortgage Loan or Administered REO Property, and the Master Servicer shall thereupon make such Servicing Advance; provided that the Special Servicer may make any Servicing Advance but does not desire to do so, the Special Servicer mayon a Specially Serviced Mortgage Loan or Administered REO Property only as may be required on an urgent or emergency basis. Each such notice and request shall be made, in its sole discretionwriting, request that the Master Servicer make such Advance, such request to be made in writing and in a timely manner that does not materially and adversely affect the interests of any Certificateholder. Subject Certificateholder (and, in any event, to the following paragraphextent reasonably practicable, at least five Business Days in advance of the date on which the subject Servicing Advance is to be made) and shall be accompanied by such information and documentation regarding the subject Servicing Advance as the Master Servicer may reasonably request; provided, however, that the Special Servicer shall not be entitled to make such a request (other than for emergency Servicing Advances) more frequently than once per calendar month (although such request may relate to more than one Servicing Advance). The Master Servicer shall have the obligation to make any such Servicing Advance (other than a Nonrecoverable Servicing Advance) that it is so requested by the Special Servicer to make make, within ten days five Business Days of the Master Servicer's receipt of such request. The If the request is timely and properly made, the Special Servicer shall be relieved of any obligations with respect to an a Servicing Advance that it so requests the Master Servicer to make with respect to any Specially Serviced Mortgage Loan or Administered REO Property (regardless of whether or not the Master Servicer shall make such Servicing Advance). The Master Servicer shall be entitled to reimbursement for any Servicing Advance made by it at the direction of the Special Servicer, together with Advance Interest thereonin accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same manner and to the same extent as the Master Servicer is entitled with respect to any other Servicing Advance Advances made thereby. If the Special Servicer makes any Servicing Advances in accordance with the terms of this Agreement, the Special Servicer shall notify the Master Servicer in writing within one Business Day of any such Servicing Advance. Notwithstanding the foregoing provisions of this Section 3.20(c3.19(b), the Master Servicer shall not be required to make at the Special Servicer's direction, or to reimburse the Special Servicer for, or to make at the direction of the Special Servicer, any Servicing Advance if the Master Servicer determines in its reasonable, good faith reasonable judgment that the such Servicing Advance which the Special Servicer is directing the Master Servicer to make or to reimburse to the Special Servicer hereunder either (y) Advance, although not characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is or would be, if made, in fact a Nonrecoverable Servicing Advance, or (z) the making of such advance was or would be in violation of the Servicing Standard or the terms and conditions of this Agreement. The Master Servicer shall notify the Special Servicer in writing of such determination. Such notice determination and, if applicable, such Nonrecoverable Servicing Advance shall not obligate be reimbursed to the Special Servicer pursuant to make any such proposed Servicing AdvanceSection 3.05(a).
(dc) Upon the earliest of (i) the date on which any Mortgage Loan or the Companion Loan becomes a Modified Mortgage Loan, (ii) the 90th day Promptly following the occurrence of any uncured delinquency in Monthly Payments an Appraisal Trigger Event with respect to any Serviced Mortgage Loan or the Companion Loan, the Special Servicer shall obtain (iii) the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Property securing any Mortgage Loan or the Companion Loanor, (iv) the 60th day following any bankruptcy or similar proceedings involving a Mortgagor and (v) the date on which the Mortgaged Property securing any Mortgage Loan or the Companion Loan becomes an REO Property (each if such Mortgage Loan has a Stated Principal Balance of $2,000,000 or the Companion Loanless, as the case may be, and any related REO Loan, a "Required Appraisal Loan"), at the Special Servicer's option, shall request and, within 30 days of the occurrence of such event (or such longer period as the Special Servicer is (as certified thereby to the Trustee in writingconduct) diligently and in good faith proceeding to obtain such) obtain an Appraisal of the related Mortgaged Property; provided, however, that such Appraisal shall not be required if unless an Appraisal of such Mortgaged Property thereof had previously been obtained (or, if applicable, conducted) within the prior twelve monthspreceding 12-month period and there has been no subsequent material change in the circumstances surrounding the related Mortgaged Property that, unless in the judgment of the Special Servicer determines that Servicer, would materially affect the value of the property, and shall deliver a copy of such previously obtained Appraisal to the Master Servicer, the Controlling Class Representative and, upon request, the Trustee. If such Appraisal is materially inaccurate. The obtained from a Qualified Appraiser, the cost of any such Appraisal thereof shall be covered by, and be reimbursable as, a Servicing Advance. With Promptly following the receipt of, and based upon, such Appraisal, the Special Servicer, in consultation with the Controlling Class Representative, shall determine and report to the Trustee and the Master Servicer the then applicable Appraisal Reduction Amount, if any, with respect to each the subject Required Appraisal Loan (unless such loan has become a Corrected Loan. For so long as any Serviced Mortgage Loan and no other Servicing Transfer Event, or other event any REO Loan that would cause the loan relates to be an Administered REO Property remains a Required Appraisal Loan, has occurred), the Special Servicer shall, within 30 days of each anniversary of such loan's becoming having become a Required Appraisal Loan, order obtain (or, if such Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or less, at the Special Servicer's option, conduct) an update of the prior Appraisal (Appraisal. If such update is obtained from a Qualified Appraiser, the cost of which will thereof shall be covered by, and be reimbursable as, a Servicing Advance). Based upon Promptly following the receipt of, and based upon, such Appraisalupdate, the Special Servicer shall determine redetermine, in consultation with the Controlling Class Representative, and report to the Trustee and the Master Servicer the then applicable Appraisal Reduction Amount, if any, with respect to such loanthe subject Required Appraisal Loan. The Controlling Class Representative shall have the right at any time within six months of the date of the receipt of any Appraisal to require that the Special Servicer obtain a new Appraisal of the subject Mortgaged Property in accordance with MAI standards, at the expense of the Controlling Class Certificateholders, and upon receipt of such Appraisal the Special Servicer shall deliver redetermine the Appraisal Reduction Amount. The Trustee shall disclose the existence of an Appraisal Reduction Amount with respect to any Mortgage Loan or REO Loan on the Statement to Certificateholders.
(d) The Master Servicer shall not be required to pay without reimbursement the fees charged by any Rating Agency for a copy (i) confirmation as to the lack of an Adverse Rating Event with respect to any Class of Rated Certificates or (ii) in connection with any other particular matter, unless the Master Servicer has failed to use efforts consistent with the Servicing Standard to collect such fees from the Borrower, which shall include, if it has the right to do so under the applicable Mortgage Loan Documents, conditioning its consent or approval on such payment by the related Borrower unless such condition would be a violation of applicable law or the Servicing Standard.
(e) In connection with each prepayment of principal received hereunder, the Master Servicer shall calculate any applicable Prepayment Premium payable under the terms of the related Mortgage Note or loan agreement. Upon written request of any Certificateholder, the Master Servicer shall disclose to such Certificateholder its calculation of any such Appraisal Prepayment Premium.
(f) The Master Servicer shall not permit defeasance of any Serviced Mortgage Loan (x) before the earliest date on which defeasance is permitted under the terms of such Mortgage Loan, or (y) subject to the terms of such Mortgage Loan, unless (i) the defeasance collateral consists of government securities (as defined in Section 2(a)(16) of the Investment Company Act), (ii) the Master Servicer. Notwithstanding Servicer has determined that the foregoingdefeasance will not result in an Adverse REMIC Event in respect of any REMIC Pool, (iii) the Master Servicer has notified the Rating Agencies, (iv) the Master Servicer has confirmed that such defeasance will not result in an Adverse Rating Event with respect to any Class of Rated Certificates (provided that the requirement to obtain such confirmation will be a precondition to the defeasance only if the Master Servicer is able under the related Mortgage Loan Documents and applicable law to prevent the defeasance if such confirmation is not obtained and either (A) the subject Serviced Mortgage Loan is one of the ten largest Mortgage Loans by balance or has a Stated Principal Balance in excess of the lesser of $__________ and 5.0% of the then aggregate Stated Principal Balance of the Mortgage Pool or (B) in the case of all Serviced Mortgage Loans not covered by (A) above, the Master Servicer is unable to execute and deliver the certification attached hereto as Exhibit M in connection with the subject defeasance), and (v) the Master Servicer has requested and received from the related Borrower (A) an Opinion of Counsel generally to the effect that the Trustee will have a perfected, first priority security interest in such defeasance collateral and (B) written confirmation from a firm of Independent accountants stating that payments made on such defeasance collateral in accordance with the terms thereof will be sufficient to pay the subject Serviced Mortgage Loan in full on or before its Stated Maturity Date (or, in the case of a Serviced Mortgage Loan that is an ARD Mortgage Loan, on or before its Anticipated Repayment Date) and to timely pay each Monthly Payment scheduled to be due prior thereto but after the defeasance; provided that, if under the terms of the related Mortgage Loan Documents, the related Borrower delivers cash to purchase the defeasance collateral rather than the defeasance collateral itself, the Master Servicer shall purchase the government securities contemplated by the related Mortgage Loan Documents. Subsequent to the second anniversary of the Startup Day for the REMIC Pool that holds the subject Serviced Mortgage Loan, to the extent that the Master Servicer can, in accordance with the related Mortgage Loan Documents, require defeasance of any Serviced Mortgage Loan in lieu of accepting a Required Appraisal prepayment of principal thereunder, including a prepayment of principal accompanied by a Prepayment Premium, the Master Servicer shall, to the extent it is consistent with the Servicing Standard, require such defeasance, provided that the conditions set forth in clauses (i) through (v) of the preceding sentence have been satisfied. The Master Servicer and the Special Servicer each shall, consistent with the Servicing Standard, enforce the provisions of the Serviced Mortgage Loans it is obligated to service hereunder relating to defeasance and prepayment restrictions; provided that, if at any time a court with jurisdiction in the matter shall hold that the related Borrower may obtain a release of the subject Mortgaged Property but is not obligated to deliver the full amount of the defeasance collateral contemplated by the related Mortgage Loan Documents (or cash sufficient to purchase such defeasance collateral), then the Master Servicer shall (i) if consistent with such court holding and the related Mortgage Loan Documents, refuse to allow the defeasance of the Serviced Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the related Borrower has delivered cash to purchase the defeasance collateral, the Master Servicer shall either (A) buy such defeasance collateral or (B) prepay the Serviced Mortgage Loan, in either case, in accordance with the Servicing Standard.
(g) The Master Servicer shall, as to each Serviced Mortgage Loan which is secured by the interest of the related Borrower under a principal balance Ground Lease as listed on the Mortgage Loan Schedule, in accordance with the related Mortgage Loan Documents, promptly (and, in any event, within 45 days) after the Closing Date notify the related ground lessor of less than $2,000,000, a desktop estimation the transfer of value may be substituted for any Appraisal otherwise required such Mortgage Loan to the Trust pursuant to this Section 3.20(d).Agreement and inform such ground lessor that any not
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Additional Obligations of the Master Servicer and the Special Servicer. (a) In connection with each Adjustable Rate Mortgage Loan (and, if and to the extent applicable, any successor REO Loan), the Master Servicer shall calculate adjustments in the Mortgage Rate and the Monthly Payment and shall notify the Mortgagor of such adjustments, all in accordance with the Mortgage Note and applicable law. In the event the Index for any Adjustable Rate Mortgage Loan (or successor REO Loan) is not published or is otherwise unavailable, the Master Servicer shall select a comparable alternative index with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no direct control, which is readily verifiable and which is acceptable under the terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable, shall each deliver to the other and to the Trustee (for inclusion in the Mortgage File) copies of all Appraisals, environmental reports and engineering reports (or, in each case, updates thereof) obtained with respect to any Mortgaged Property or REO Property.
(c) No more frequently than once per calendar month, the Special Servicer may require the Master Servicer, and the Master Servicer shall be obligated, subject to the second following paragraph, to reimburse the Special Servicer for any Servicing Advances made by but not previously reimbursed to the Special Servicer, and to pay the Special Servicer interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of Advance Interest shall be made within ten (10) days of the request therefor by wire transfer of immediately available funds to an account designated by the Special Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of any Servicing Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(c3.19(c), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as the Special Servicer originally made such Advance, and accordingly, the Master Servicer shall be entitled to reimbursement for such Advance, together with interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Servicing Advance. Notwithstanding anything to the contrary contained in this Agreement, if the Special Servicer is required under this Agreement to make any Servicing Advance but does not desire to do so, the Special Servicer may, in its sole discretion, request that the Master Servicer make such Advance, such request to be made in writing and in a timely manner that does not materially and adversely affect the interests of any Certificateholder. Subject to the following paragraph, the Master Servicer shall have the obligation to make any such Servicing Advance that it is requested by the Special Servicer to make within ten days of the Master Servicer's receipt of such request. The Special Servicer shall be relieved of any obligations with respect to an Advance that it requests the Master Servicer to make (regardless of whether or not the Master Servicer shall make such Advance). The Master Servicer shall be entitled to reimbursement for any Servicing Advance made by it at the direction of the Special Servicer, together with Advance Interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer is entitled with respect to any other Servicing Advance made thereby. If the Special Servicer makes any Servicing Advances in accordance with the terms of this Agreement, the Special Servicer shall notify the Master Servicer in writing within one Business Day of any such Servicing Advance. Notwithstanding the foregoing provisions of this Section 3.20(c3.19(c), the Master Servicer shall not be required to make at the Special Servicer's direction, or to reimburse the Special Servicer for, any Servicing Advance if the Master Servicer determines in its reasonable, good faith judgment that the Servicing Advance which the Special Servicer is directing the Master Servicer to make or to reimburse to the Special Servicer hereunder either (y) although not characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable Servicing Advance, or (z) the making of such advance was or would be in violation of the Servicing Standard or the terms and conditions of this Agreement. The Master Servicer shall notify the Special Servicer in writing of such determination. Such notice shall not obligate the Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage Loan or the Companion Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of any uncured delinquency in Monthly Payments with respect to any Mortgage Loan or the Companion Loan, (iii) the date on which a receiver is 107 appointed and continues in such capacity in respect of the Mortgaged Property securing any Mortgage Loan or the Companion Loan, and (iv) the 60th day following any bankruptcy or similar proceedings involving a Mortgagor and (v) the date on which the Mortgaged Property securing any Mortgage Loan or the Companion Loan becomes an REO Property (each such Mortgage Loan or the Companion Loan, as the case may be, and any related REO Loan, a "Required Appraisal Loan"), the Special Servicer, shall request and, within 30 days of the occurrence of such event (or such longer period as the Special Servicer is (as certified thereby to the Trustee in writing) diligently and in good faith proceeding to obtain such) obtain an Appraisal of the related Mortgaged Property; provided, however, that such Appraisal shall not be required if an Appraisal of such the Mortgaged Property had previously been obtained within the prior twelve months, unless the Special Servicer determines that such previously obtained Appraisal is materially inaccurate. The cost of any such Appraisal shall be covered by, and reimbursable as, a Servicing Advance. With respect to each Required Appraisal Loan (unless such loan has become a Corrected Mortgage Loan and no other Servicing Transfer Event, or other event that would cause the loan to be a Required Appraisal Loan, has occurred), the Special Servicer shall, within 30 days of each anniversary of such loan's becoming a Required Appraisal Loan, order an update of the prior Appraisal (the cost of which will be covered by, and reimbursable as, a Servicing Advance). Based upon such Appraisal, the Special Servicer shall determine and report to the Trustee the Appraisal Reduction Amount, if any, with respect to such loan. The Special Servicer shall deliver a copy of any such Appraisal to the Master Servicer. Notwithstanding the foregoing, if a Required Appraisal Loan has a principal balance of less than $2,000,000, a desktop estimation of value may be substituted for any Appraisal otherwise required pursuant to this Section 3.20(d3.19(d).
(e) The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the aggregate of all Balloon Payment Interest Shortfalls incurred in connection with Balloon Payments received in respect of the Mortgage Loans during the most recently ended Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the lesser of (i) the aggregate of all Prepayment Interest Shortfalls incurred in connection with Principal Prepayments received in respect of the Mortgage Loans during the most recently ended Collection Period, and (ii) the aggregate Master Servicing Fees received by the Master Servicer during such Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply all Monthly Payments and any other sums due, in accordance with the terms of the related ARD Loan.
(h) Subject to Section 3.20(a)(iv), with respect to all ARD Loans, the Master Servicer and the Special Servicer shall not take any enforcement action with respect to the payment of Excess Interest or principal in excess of the principal component of the constant Monthly Payment, other than request for collection, until the maturity date of the related Mortgage Loan. The foregoing shall not limit the Servicer and Special Servicer's obligation to establish or direct the related Mortgagor to establish a Lock-Box Account pursuant to Section 3.24.
(i) The Master Servicer shall be entitled to waive the application of any provision in any ARD Loan that requires that the property manager of the related Mortgaged Property be discharged if such ARD Loan is not paid in full on its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan that upon the occurrence of certain events permits the Master Servicer to apply the proceeds of the release of any earnout reserve to the exercise of a Defeasance Option, the Master Servicer shall only exercise such Defeasance Option in accordance with Section 3.08 of this Agreement.
(k) To the extent consistent with the terms of the applicable Mortgage Loan, the Master Servicer shall exercise its option to apply any proceeds of the release of the related earnout reserve to the prepayment or defeasance, as applicable, of such Mortgage Loan.
(l) Upon the application of the proceeds of the release of any earnout reserve to the prepayment of the related Mortgage Loan, the Master Servicer shall calculate, based upon the Maturity Date, Mortgage Rate and remaining outstanding principal balance of such Mortgage Loan, a revised schedule upon which the remaining amount of principal and interest due upon such Mortgage Loan shall be amortized until its Maturity Date. The Master Servicer shall deliver a copy of such revised amortization schedule to the related Mortgagor with an instruction to thereafter make Monthly Payments in accordance with the revised schedule.
(m) The Master Servicer shall provide written direction to each lessor under a Ground Lease requesting that upon any default by the lessee, notice thereof be provided to the Master Servicer to the extent required by the Ground Lease.
(n) The Master Servicer and the Special Servicer shall take all such action as may be required to comply with the terms and conditions precedent to payment of claims under the Environmental Policy and in order to maintain, in full force and effect, such policy. Neither the Master Servicer nor the Special Servicer shall agree to amend the Environmental Policy unless it shall have obtained Rating Agency Confirmation with respect to such amendment. In addition, the Master Servicer shall notify each Rating Agency of any claim under the Environmental Policy.
(o) With respect to any fees payable to a Rating Agency in connection with an assumption the Master Servicer or Special Servicer, as applicable, shall not approve any assumption without requiring the Mortgagor to pay any fees associated with any Rating Agency Confirmation, to the extent permitted or required under the applicable Mortgage Loan documents and otherwise consistent with the Servicing Standard.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Additional Obligations of the Master Servicer and the Special Servicer. (a) In The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account by 1:00 p.m. (New York City time) on each Master Servicer Remittance Date, without any right of reimbursement therefor, a cash payment (a "COMPENSATING INTEREST Payment") in an amount equal to the sum of :
(i) the lesser of (A) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with Principal Prepayments received (including, in the case of the [Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) during the most recently ended Collection Period with respect to the Mortgage Loans, and (B) the aggregate of (1) that portion of the Master Servicer's Master Servicing Fees for the most recently ended Collection Period that is, in the case of each Adjustable Rate and every Mortgage Loan and REO Loan for which such Master Servicing Fees are being paid in such Collection Period, calculated at ___% per annum, (and, if and to the extent applicable, any successor REO Loan), 2) all Prepayment Interest Excesses received by the Master Servicer shall calculate adjustments in during the Mortgage Rate most recently ended Collection Period and (3) all Net Investment Earnings earned on such Principal Prepayments; PROVIDED, HOWEVER, that if such a Prepayment Interest Shortfall occurs as a result of the Monthly Payment and shall notify Master Servicer's allowing the Mortgagor of such adjustments, all in accordance with the Mortgage Note and applicable law. In the event the Index for Borrower under any Adjustable Rate Serviced Mortgage Loan (or successor REO Loan) is not published or is otherwise unavailable, the Master Servicer shall select a comparable alternative index with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no direct control, which is readily verifiable and which is acceptable under deviate from the terms of the related Mortgage NoteLoan Documents regarding Principal Prepayments (other than (S) subsequent to a material default under the related Mortgage Loan Documents, (T) pursuant to applicable law or a court order, or (U) at the request or with the consent of the Controlling Class Representative), then, for purposes of calculating the Compensating Interest Payment for the subject Collection Period, the rate referred to in CLAUSE (B)(1) above shall be ___% per annum (except as to the Mortgage Loans that are, as of the Closing Date, Primary Serviced Mortgage Loans, for which it shall in each case be ___% per annum); and
(ii) the lesser of (A) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with Insurance Proceeds and Condemnation Proceeds received (including, in the case of the [Separately Serviced Mortgage Loan], by the [Separately Serviced Mortgage Loan] Master Servicer or the [Separately Serviced Mortgage Loan] Special Servicer on behalf of the Trust) during the most recently ended Collection Period with respect to the Mortgage Loans, and (B) all Net Investment Earnings earned on the portion of such Insurance Proceeds and Condemnation Proceeds that represents an early recovery of principal. The rights of the Certificateholders to offset the aggregate Prepayment Interest Shortfalls shall not be cumulative from Collection Period to Collection Period.
(b) The Master Servicer and No later than 1:00 p.m. New York City time on the first Determination Date that follows the date on which the Special Servicer, as applicable, shall each deliver to the other and to the Trustee (for inclusion in the Mortgage File) copies of all Appraisals, environmental reports and engineering reports (or, in each case, updates thereof) obtained with respect to Servicer makes any Mortgaged Property or REO Property.
(c) No more frequently than once per calendar monthServicing Advance, the Special Servicer may require shall provide the Master Servicer an Officer's Certificate (via facsimile) setting forth the details of the Servicing Advance upon which the Master Servicer shall conclusively rely in reimbursing the Special Servicer, and the . The Master Servicer shall be obligated, subject to out of the second following paragraphMaster Servicer's own funds, to reimburse the Special Servicer for any unreimbursed Servicing Advances Advance (other than a Nonrecoverable Servicing Advance) made by but not previously reimbursed to the Special Servicer, and to pay the Special Servicer with respect to any Specially Serviced Mortgage Loan or Administered REO Property, together with interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and Any such reimbursement, together with any accompanying payment of Advance Interest interest, shall be made within ten (10) days of by the request therefor Master Servicer, by wire transfer of immediately available funds to an account designated by the Special Servicer, no later than the first Master Servicer Remittance Date that is at least three (3) Business Days after the date on which the Master Servicer receives the corresponding Officer's Certificate contemplated by the prior sentence; PROVIDED that any such Officer's Certificate received after 1:00 p.m., New York City time, on any particular date shall, for purposes of any such reimbursement, be deemed received on the next succeeding Business Day. Upon the Master Servicer's reimbursement to the Special Servicer of any Servicing Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(cSECTION 3.19(b), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as the Special Servicer originally actually made such Servicing Advance, and accordingly, the Master Servicer shall be entitled to reimbursement for such Servicing Advance, together with interest thereonthereon in accordance with SECTIONS 3.05(A) and 3.11(G), at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Servicing AdvanceAdvance at the time the Special Servicer did. Notwithstanding anything to the contrary contained in any other Section of this Agreement, if the Special Servicer shall notify the Master Servicer whenever a Servicing Advance is required under this Agreement to be made with respect to any Specially Serviced Mortgage Loan or Administered REO Property, and the Master Servicer shall thereupon make such Servicing Advance; PROVIDED that the Special Servicer may make any Servicing Advance but does not desire to do so, the Special Servicer mayon a Specially Serviced Mortgage Loan or Administered REO Property only as may be required on an urgent or emergency basis. Each such notice and request shall be made, in its sole discretionwriting, request that the Master Servicer make such Advance, such request to be made in writing and in a timely manner that does not materially and adversely affect the interests of any Certificateholder. Subject Certificateholder (and, in any event, to the following paragraphextent reasonably practicable, at least five Business Days in advance of the date on which the subject Servicing Advance is to be made) and shall be accompanied by such information and documentation regarding the subject Servicing Advance as the Master Servicer may reasonably request; PROVIDED, HOWEVER, that the Special Servicer shall not be entitled to make such a request (other than for emergency Servicing Advances) more frequently than once per calendar month (although such request may relate to more than one Servicing Advance). The Master Servicer shall have the obligation to make any such Servicing Advance (other than a Nonrecoverable Servicing Advance) that it is so requested by the Special Servicer to make make, within ten days five Business Days of the Master Servicer's receipt of such request. The If the request is timely and properly made, the Special Servicer shall be relieved of any obligations with respect to an a Servicing Advance that it so requests the Master Servicer to make with respect to any Specially Serviced Mortgage Loan or Administered REO Property (regardless of whether or not the Master Servicer shall make such Servicing Advance). The Master Servicer shall be entitled to reimbursement for any Servicing Advance made by it at the direction of the Special Servicer, together with Advance Interest thereonin accordance with SECTIONS 3.05(A) and 3.11(G), at the same time, in the same manner and to the same extent as the Master Servicer is entitled with respect to any other Servicing Advance Advances made thereby. If the Special Servicer makes any Servicing Advances in accordance with the terms of this Agreement, the Special Servicer shall notify the Master Servicer in writing within one Business Day of any such Servicing Advance. Notwithstanding the foregoing provisions of this Section 3.20(cSECTION 3.19(B), the Master Servicer shall not be required to make at the Special Servicer's direction, or to reimburse the Special Servicer for, or to make at the direction of the Special Servicer, any Servicing Advance if the Master Servicer determines in its reasonable, good faith reasonable judgment that the such Servicing Advance which the Special Servicer is directing the Master Servicer to make or to reimburse to the Special Servicer hereunder either (y) Advance, although not characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is or would be, if made, in fact a Nonrecoverable Servicing Advance, or (z) the making of such advance was or would be in violation of the Servicing Standard or the terms and conditions of this Agreement. The Master Servicer shall notify the Special Servicer in writing of such determination. Such notice determination and, if applicable, such Nonrecoverable Servicing Advance shall not obligate be reimbursed to the Special Servicer pursuant to make any such proposed Servicing AdvanceSECTION 3.05(A).
(dc) Upon the earliest of (i) the date on which any Mortgage Loan or the Companion Loan becomes a Modified Mortgage Loan, (ii) the 90th day Promptly following the occurrence of any uncured delinquency in Monthly Payments an Appraisal Trigger Event with respect to any Serviced Mortgage Loan or the Companion Loan, the Special Servicer shall obtain (iii) the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Property securing any Mortgage Loan or the Companion Loanor, (iv) the 60th day following any bankruptcy or similar proceedings involving a Mortgagor and (v) the date on which the Mortgaged Property securing any Mortgage Loan or the Companion Loan becomes an REO Property (each if such Mortgage Loan has a Stated Principal Balance of $2,000,000 or the Companion Loanless, as the case may be, and any related REO Loan, a "Required Appraisal Loan"), at the Special Servicer's option, shall request and, within 30 days of the occurrence of such event (or such longer period as the Special Servicer is (as certified thereby to the Trustee in writingconduct) diligently and in good faith proceeding to obtain such) obtain an Appraisal of the related Mortgaged Property; provided, however, that such Appraisal shall not be required if unless an Appraisal of such Mortgaged Property thereof had previously been obtained (or, if applicable, conducted) within the prior twelve monthspreceding 12-month period and there has been no subsequent material change in the circumstances surrounding the related Mortgaged Property that, unless in the judgment of the Special Servicer determines that Servicer, would materially affect the value of the property, and shall deliver a copy of such previously obtained Appraisal to the Master Servicer, the Controlling Class Representative and, upon request, the Trustee. If such Appraisal is materially inaccurate. The obtained from a Qualified Appraiser, the cost of any such Appraisal thereof shall be covered by, and be reimbursable as, a Servicing Advance. With Promptly following the receipt of, and based upon, such Appraisal, the Special Servicer, in consultation with the Controlling Class Representative, shall determine and report to the Trustee and the Master Servicer the then applicable Appraisal Reduction Amount, if any, with respect to each the subject Required Appraisal Loan (unless such loan has become a Corrected Loan. For so long as any Serviced Mortgage Loan and no other Servicing Transfer Event, or other event any REO Loan that would cause the loan relates to be an Administered REO Property remains a Required Appraisal Loan, has occurred), the Special Servicer shall, within 30 days of each anniversary of such loan's becoming having become a Required Appraisal Loan, order obtain (or, if such Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or less, at the Special Servicer's option, conduct) an update of the prior Appraisal (Appraisal. If such update is obtained from a Qualified Appraiser, the cost of which will thereof shall be covered by, and be reimbursable as, a Servicing Advance). Based upon Promptly following the receipt of, and based upon, such Appraisalupdate, the Special Servicer shall determine redetermine, in consultation with the Controlling Class Representative, and report to the Trustee and the Master Servicer the then applicable Appraisal Reduction Amount, if any, with respect to such loanthe subject Required Appraisal Loan. The Controlling Class Representative shall have the right at any time within six months of the date of the receipt of any Appraisal to require that the Special Servicer obtain a new Appraisal of the subject Mortgaged Property in accordance with MAI standards, at the expense of the Controlling Class Certificateholders, and upon receipt of such Appraisal the Special Servicer shall deliver redetermine the Appraisal Reduction Amount. The Trustee shall disclose the existence of an Appraisal Reduction Amount with respect to any Mortgage Loan or REO Loan on the Statement to Certificateholders.
(d) The Master Servicer shall not be required to pay without reimbursement the fees charged by any Rating Agency for a copy (i) confirmation as to the lack of an Adverse Rating Event with respect to any Class of Rated Certificates or (ii) in connection with any other particular matter, unless the Master Servicer has failed to use efforts consistent with the Servicing Standard to collect such fees from the Borrower, which shall include, if it has the right to do so under the applicable Mortgage Loan Documents, conditioning its consent or approval on such payment by the related Borrower unless such condition would be a violation of applicable law or the Servicing Standard.
(e) In connection with each prepayment of principal received hereunder, the Master Servicer shall calculate any applicable Prepayment Premium payable under the terms of the related Mortgage Note or loan agreement. Upon written request of any Certificateholder, the Master Servicer shall disclose to such Certificateholder its calculation of any such Appraisal Prepayment Premium.
(f) The Master Servicer shall not permit defeasance of any Serviced Mortgage Loan (x) before the earliest date on which defeasance is permitted under the terms of such Mortgage Loan, or (y) subject to the terms of such Mortgage Loan, unless (i) the defeasance collateral consists of government securities (as defined in Section 2(a)(16) of the Investment Company Act), (ii) the Master Servicer. Notwithstanding Servicer has determined that the foregoingdefeasance will not result in an Adverse REMIC Event in respect of any REMIC Pool, (iii) the Master Servicer has notified the Rating Agencies, (iv) the Master Servicer has confirmed that such defeasance will not result in an Adverse Rating Event with respect to any Class of Rated Certificates (PROVIDED that the requirement to obtain such confirmation will be a precondition to the defeasance only if the Master Servicer is able under the related Mortgage Loan Documents and applicable law to prevent the defeasance if such confirmation is not obtained and either (A) the subject Serviced Mortgage Loan is one of the ten largest Mortgage Loans by balance or has a Stated Principal Balance in excess of the lesser of $__________ and 5.0% of the then aggregate Stated Principal Balance of the Mortgage Pool or (B) in the case of all Serviced Mortgage Loans not covered by (A) above, the Master Servicer is unable to execute and deliver the certification attached hereto as EXHIBIT M in connection with the subject defeasance), and (v) the Master Servicer has requested and received from the related Borrower (A) an Opinion of Counsel generally to the effect that the Trustee will have a perfected, first priority security interest in such defeasance collateral and (B) written confirmation from a firm of Independent accountants stating that payments made on such defeasance collateral in accordance with the terms thereof will be sufficient to pay the subject Serviced Mortgage Loan in full on or before its Stated Maturity Date (or, in the case of a Serviced Mortgage Loan that is an ARD Mortgage Loan, on or before its Anticipated Repayment Date) and to timely pay each Monthly Payment scheduled to be due prior thereto but after the defeasance; PROVIDED that, if under the terms of the related Mortgage Loan Documents, the related Borrower delivers cash to purchase the defeasance collateral rather than the defeasance collateral itself, the Master Servicer shall purchase the government securities contemplated by the related Mortgage Loan Documents. Subsequent to the second anniversary of the Startup Day for the REMIC Pool that holds the subject Serviced Mortgage Loan, to the extent that the Master Servicer can, in accordance with the related Mortgage Loan Documents, require defeasance of any Serviced Mortgage Loan in lieu of accepting a Required Appraisal prepayment of principal thereunder, including a prepayment of principal accompanied by a Prepayment Premium, the Master Servicer shall, to the extent it is consistent with the Servicing Standard, require such defeasance, PROVIDED that the conditions set forth in CLAUSES (I) through (V) of the preceding sentence have been satisfied. The Master Servicer and the Special Servicer each shall, consistent with the Servicing Standard, enforce the provisions of the Serviced Mortgage Loans it is obligated to service hereunder relating to defeasance and prepayment restrictions; PROVIDED that, if at any time a court with jurisdiction in the matter shall hold that the related Borrower may obtain a release of the subject Mortgaged Property but is not obligated to deliver the full amount of the defeasance collateral contemplated by the related Mortgage Loan Documents (or cash sufficient to purchase such defeasance collateral), then the Master Servicer shall (i) if consistent with such court holding and the related Mortgage Loan Documents, refuse to allow the defeasance of the Serviced Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the related Borrower has delivered cash to purchase the defeasance collateral, the Master Servicer shall either (A) buy such defeasance collateral or (B) prepay the Serviced Mortgage Loan, in either case, in accordance with the Servicing Standard.
(g) The Master Servicer shall, as to each Serviced Mortgage Loan which is secured by the interest of the related Borrower under a principal balance Ground Lease as listed on the Mortgage Loan Schedule, in accordance with the related Mortgage Loan Documents, promptly (and, in any event, within 45 days) after the Closing Date notify the related ground lessor of less than $2,000,000, a desktop estimation the transfer of value may be substituted for any Appraisal otherwise required such Mortgage Loan to the Trust pursuant to this Section 3.20(d).Agreement and inform such ground lessor that any not
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Additional Obligations of the Master Servicer and the Special Servicer. (a) In connection with each Adjustable Rate Mortgage Loan (and, if and to the extent applicable, any successor REO Loan), the Master Servicer shall calculate adjustments in the Mortgage Rate and the Monthly Payment and shall notify the Mortgagor of such adjustments, all in accordance with the Mortgage Note and applicable law. In the event the Index for any Adjustable Rate Mortgage Loan (or successor REO Loan) is not published or is otherwise unavailable, the Master Servicer shall select a comparable alternative index with respect to such Adjustable Rate Mortgage Loan (or successor REO Loan) over which it has no direct control, which is readily verifiable and which is acceptable under the terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer, as applicable, shall each deliver to the other and to the Trustee (for inclusion in the Mortgage File) copies of all Appraisals, environmental reports and engineering reports (or, in each case, updates thereof) obtained with respect to any Mortgaged Property or REO Property.
(c) No more frequently than once per calendar month, the Special Servicer may require the Master Servicer, and the Master Servicer shall be obligated, subject to the second following paragraph, to reimburse the Special Servicer for any Servicing Advances made by but not previously reimbursed to the Special Servicer, and to pay the Special Servicer interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of Advance Interest shall be made within ten (10) days of the request therefor by wire transfer of immediately available funds to an account designated by the Special Servicer. Upon the Master Servicer's reimbursement to the Special Servicer of any Servicing Advance and payment to the Special Servicer of interest thereon, all in accordance with this Section 3.20(c3.19(c), the Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as the Special Servicer originally made such Advance, and accordingly, the Master Servicer shall be entitled to reimbursement for such Advance, together with interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer would otherwise have been entitled if it had actually made such Servicing Advance. Notwithstanding anything to the contrary contained in this Agreement, if the Special Servicer is required under this Agreement to make any Servicing Advance but does not desire to do so, the Special Servicer may, in its sole discretion, request that the Master Servicer make such Advance, such request to be made in writing and in a timely manner that does not materially and adversely affect the interests of any Certificateholder. Subject to the following paragraph, the Master Servicer shall have the obligation to make any such Servicing Advance that it is requested by the Special Servicer to make within ten days of the Master Servicer's receipt of such request. The Special Servicer shall be relieved of any obligations with respect to an Advance that it requests the Master Servicer to make (regardless of whether or not the Master Servicer shall make such Advance). The Master Servicer shall be entitled to reimbursement for any Servicing Advance made by it at the direction of the Special Servicer, together with Advance Interest thereon, at the same time, in the same manner and to the same extent as the Master Servicer is entitled with respect to any other Servicing Advance made thereby. If the Special Servicer makes any Servicing Advances in accordance with the terms of this Agreement, the Special Servicer shall notify the Master Servicer in writing within one Business Day of any such Servicing Advance. Notwithstanding the foregoing provisions of this Section 3.20(c3.19(c), the Master Servicer shall not be required to make at the Special Servicer's direction, or to reimburse the Special Servicer for, any Servicing Advance if the Master Servicer determines in its reasonable, good faith judgment that the Servicing Advance which the Special Servicer is directing the Master Servicer to make or to reimburse to the Special Servicer hereunder either (y) although not characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable Servicing Advance, or (z) the making of such advance was or would be in violation of the Servicing Standard or the terms and conditions of this Agreement. The Master Servicer shall notify the Special Servicer in writing of such determination. Such notice shall not obligate the Special Servicer to make any such proposed Servicing Advance.
(d) Upon the earliest of (i) the date on which any Mortgage Loan or the Companion Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of any uncured delinquency in Monthly Payments with respect to any Mortgage Loan or the Companion Loan, (iii) the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Property securing any Mortgage Loan or the Companion Loan, and (iv) the 60th day following any bankruptcy or similar proceedings involving a Mortgagor and (v) the date on which the Mortgaged Property securing any Mortgage Loan or the Companion Loan becomes an REO Property (each such Mortgage Loan or the Companion Loan, as the case may be, and any related REO Loan, a "Required Appraisal Loan"), the Special Servicer, shall request and, within 30 days of the occurrence of such event (or such longer period as the Special Servicer is (as certified thereby to the Trustee in writing) diligently and in good faith proceeding to obtain such) obtain an Appraisal of the related Mortgaged Property; provided, however, that such Appraisal shall not be required if an Appraisal of such Mortgaged Property had previously been obtained within the prior twelve months, unless the Special Servicer determines that such previously obtained Appraisal is materially inaccurate. The cost of any such Appraisal shall be covered by, and reimbursable as, a Servicing Advance. With respect to each Required Appraisal Loan (unless such loan has become a Corrected Mortgage Loan and no other Servicing Transfer Event, or other event that would cause the loan to be a Required Appraisal Loan, has occurred), the Special Servicer shall, within 30 days of each anniversary of such loan's becoming a Required Appraisal Loan, order an update of the prior Appraisal (the cost of which will be covered by, and reimbursable as, a Servicing Advance). Based upon such Appraisal, the Special Servicer shall determine and report to the Trustee the Appraisal Reduction Amount, if any, with respect to such loan. The Special Servicer shall deliver a copy of any such Appraisal to the Master Servicer. Notwithstanding the foregoing, if a Required Appraisal Loan has a principal balance of less than $2,000,000, a desktop estimation of value may be substituted for any Appraisal otherwise required pursuant to this Section 3.20(d3.19(d).
(e) The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the aggregate of all Balloon Payment Interest Shortfalls incurred in connection with Balloon Payments received in respect of the Mortgage Loans during the most recently ended Collection Period.
(f) The Master Servicer shall deliver to the Trustee for deposit in the Distribution Account on each Master Servicer Remittance Date, without any right of reimbursement therefor, an amount equal to the lesser of (i) the aggregate of all Prepayment Interest Shortfalls incurred in connection with Principal Prepayments received in respect of the Mortgage Loans during the most recently ended Collection Period, and (ii) the aggregate Master Servicing Fees received by the Master Servicer during such Collection Period.
(g) With respect to all ARD Loans, the Master Servicer shall apply all Monthly Payments and any other sums due, in accordance with the terms of the related ARD Loan.
(h) Subject to Section 3.20(a)(iv), with respect to all ARD Loans, the Master Servicer and the Special Servicer shall not take any enforcement action with respect to the payment of Excess Interest or principal in excess of the principal component of the constant Monthly Payment, other than request for collection, until the maturity date of the related Mortgage Loan. The foregoing shall not limit the Servicer and Special Servicer's obligation to establish or direct the related Mortgagor to establish a Lock-Box Account pursuant to Section 3.24.
(i) The Master Servicer shall be entitled to waive the application of any provision in any ARD Loan that requires that the property manager of the related Mortgaged Property be discharged if such ARD Loan is not paid in full on its Anticipated Repayment Date.
(j) With respect to each Mortgage Loan that upon the occurrence of certain events permits the Master Servicer to apply the proceeds of the release of any earnout reserve to the exercise of a Defeasance Option, the Master Servicer shall only exercise such Defeasance Option in accordance with Section 3.08 of this Agreement.
(k) To the extent consistent with the terms of the applicable Mortgage Loan, the Master Servicer shall exercise its option to apply any proceeds of the release of the related earnout reserve to prepayment or defeasance, as applicable, of such Mortgage Loan.
(l) Upon the application of the proceeds of the release of any earnout reserve to the prepayment of the related Mortgage Loan, the Master Servicer shall calculate, based upon the Maturity Date, Mortgage Rate and remaining outstanding principal balance of such Mortgage Loan, a revised schedule upon which the remaining amount of principal and interest due upon such Mortgage Loan shall be amortized until its Maturity Date. The Master Servicer shall deliver a copy of such revised amortization schedule to the related Mortgagor with an instruction to thereafter make Monthly Payments in accordance with the revised schedule.
(m) The Master Servicer shall provide written direction to each lessor under a Ground Lease requesting that upon any default by the lessee, notice thereof be provided to the Master Servicer to the extent required by the Ground Lease.
(n) The Master Servicer and the Special Servicer shall take all such action as may be required to comply with the terms and conditions precedent to payment of claims under the Environmental Policy and in order to maintain, in full force and effect, such policy. Neither the Master Servicer nor the Special Servicer shall agree to amend the Environmental Policy unless it shall have obtained Rating Agency Confirmation with respect to such amendment. In addition, the Master Servicer shall notify each Rating Agency of any claim under the Environmental Policy.
(o) With respect to any fees payable to a Rating Agency in connection with an assumption the Master Servicer or Special Servicer, as applicable, shall not approve any assumption without requiring the Mortgagor to pay any fees associated with any Rating Agency Confirmation, to the extent permitted or required under the applicable Mortgage Loan documents and otherwise consistent with the Servicing Standard.
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Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)