Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01: (i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith; (iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; (iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement; (v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders; (vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; (vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement; (viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and (ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 21 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C18), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C14), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C14)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause any event which is in fact such Trust REMIC to fail to qualify as a default is received REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any time that any Certificates are outstanding or subject a Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 21 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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (i), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 18 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2020-Gsa2), Pooling and Servicing Agreement (Benchmark 2020-B21 Mortgage Trust), Pooling and Servicing Agreement (JPMDB Commercial Mortgage Securities Trust 2020-Cor7)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel and the accountants, and any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the CertificateholdersTrust Interest Owners, pursuant to the provisions of this Agreement, unless such Certificateholders Trust Interest Owner shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or a Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event, as applicable, that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve be relieved of its obligations by virtue of the use of any such agent or attorney;
(vii) no provision of this Agreement or of the Certificates shall require the Trustee or the Certificate Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or obligations thereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(viii) the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement other than as set forth in Section 3.8 (and other than investments made with the Certificate Administrator as an obligor on such investments in its individual commercial capacity);
(ix) neither the Trustee nor the Certificate Administrator shall be required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder;
(viix) For all purposes under this Agreementneither the Trustee nor the Certificate Administrator, as applicable, hereunder shall be personally liable hereunder by reason of any act or failure to act of any predecessor or successor Trustee or Certificate Administrator, as applicable, hereunder.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be deemed to have notice enforced by such party without the possession of any Servicer Termination Event unless a Responsible Officer of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice shall be brought in its name for the benefit of any event all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (“Applicable Laws”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities which is in fact such maintain a default is received by business relationship with the Trustee or the Certificate Administrator at Administrator, as applicable. Accordingly, each of the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither parties agrees to provide to the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the primary cause of such insufficiencyTrustee to comply with Applicable Laws.
Appears in 17 contracts
Samples: Trust and Servicing Agreement (CSAIL 2021-C20 Commercial Mortgage Trust), Trust and Servicing Agreement (BBCMS Mortgage Trust 2021-C9), Trust and Servicing Agreement (Benchmark 2021-B23 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerGod, as the case may bestrikes, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or lockouts, riots and acts of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencywar).
Appears in 14 contracts
Samples: Pooling and Servicing Agreement (Benchmark 2019-B10 Mortgage Trust), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2019-Gc38), Pooling and Servicing Agreement (Benchmark 2019-B9 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; providedagents, however, that the appointment of such agents Affiliates or attorneys but shall not relieve the Trustee or the Certificate Administrator be relieved of its duties or obligations hereunder;
(vii) For all purposes under of this Agreement, neither the Trustee nor or the Certificate Administrator Administrator, as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event;
(viii) Except as otherwise expressly set forth in this Agreement, Computershare Trust Company, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Computershare Trust Company, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Computershare Trust Company, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Computershare Trust Company, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; and
(ix) Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless written notice the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause any event which is in fact such Trust REMIC to fail to qualify as a default is received REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any time that any Certificates are outstanding or subject a Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 10 contracts
Samples: Pooling and Servicing Agreement (BMO 2022-C1 Mortgage Trust), Pooling and Servicing Agreement (BMO 2023-C6 Mortgage Trust), Pooling and Servicing Agreement (BBCMS 2023-C20)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel and the accountants, and any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders Certificateholder shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event, as applicable, that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve be relieved of its obligations by virtue of the use of any such agent or attorney;
(vii) no provision of this Agreement or of the Certificates shall require the Trustee or the Certificate Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or obligations thereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(viii) the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement other than as set forth in Section 3.8 (and other than investments made with the Certificate Administrator as an obligor on such investments in its individual commercial capacity);
(ix) neither the Trustee nor the Certificate Administrator shall be required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder;
(viix) For all purposes under this Agreementneither the Trustee nor the Certificate Administrator, as applicable, hereunder shall be personally liable hereunder by reason of any act or failure to act of any predecessor or successor Trustee or Certificate Administrator, as applicable, hereunder.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be deemed to have notice enforced by such party without the possession of any Servicer Termination Event unless a Responsible Officer of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice shall be brought in its name for the benefit of any event all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (“Applicable Laws”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities which is in fact such maintain a default is received by business relationship with the Trustee or the Certificate Administrator at Administrator, as applicable. Accordingly, each of the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither parties agrees to provide to the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the primary cause of such insufficiencyTrustee to comply with Applicable Laws.
Appears in 8 contracts
Samples: Trust and Servicing Agreement (Bank 2022-Bnk41), Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2022-C62), Trust and Servicing Agreement (BBCMS Mortgage Trust 2022-C15)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, direction of the Depositor, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate reasonable indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders holders of Certificates Voting Rights entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event or Asset Representations Reviewer Termination Event or any act, failure or breach of any Person upon the occurrence of which the Trustee or the Certificate Administrator may be required to act unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which event, act, failure or breach that is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or the Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or the Special Servicer) ), the Operating Advisor, the Asset Representations Reviewer or of the Depositor; and;
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency;
(x) In no event shall the Certificate Administrator or Trustee be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond the Certificate Administrator’s or Trustee’s control, including, but not limited to force majeure or acts of God;
(xi) Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; provided, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions;
(xii) Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law; and
(xiii) Nothing herein shall be construed as an obligation of the parties to this Agreement to advise the Certificateholders with respect to their rights and protections relative to the Trust. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Xxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 8 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2018-Gs9), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2017-C42), Pooling and Servicing Agreement (Bank 2017-Bnk9)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, direction of the Depositor, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that unless repayment of such funds or adequate indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity reasonably satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, neither none of the Trustee nor Trustee, the Custodian or the Certificate Administrator shall be deemed to have actual knowledge or notice of any Servicer Termination Event or Asset Representations Reviewer Termination Event or any act, failure or breach of any Person upon the occurrence of which the Trustee or Certificate Administrator may be required to act unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event event, act, failure or breach, as applicable, which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as the Master Servicer or the Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as the Master Servicer or the Special Servicer) or of the Depositor; and, the Operating Advisor or the Asset Representations Reviewer;
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency;
(x) In no event shall the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct;
(xi) Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law; and
(xii) Nothing herein shall be construed as an obligation for any party to this Agreement to advise a Certificateholder with respect to its rights and protections relative to the Trust. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Xxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 8 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2016-Bnk2), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2017-Gs7), Pooling and Servicing Agreement (UBS Commercial Mortgage Trust 2017-C1)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 8 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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.01Sections 8.1, 8.5(c) and 8.13:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, direction of the Depositor, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel counsel, and the any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of as to matters arising hereunder hereunder, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be, that a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, has actual knowledge of (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator or any of their directors, officer or employees shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents agents, affiliates or attorneys selected by it with due care, but the Certificate Administrator and the Trustee shall not be relieved of any of its duties or obligations by virtue of the appointment of any agents, affiliates or attorneys; ;
(vii) each of the Trustee and the Certificate Administrator shall not be liable for any loss on any investment of funds made by the Trustee or the Certificate Administrator, as applicable, pursuant to the terms of this Agreement, provided, however, that the appointment of such agents or attorneys this clause (vii) shall not relieve the Trustee or the Certificate Administrator (solely in their respective commercial capacities and not in their respective capacities hereunder) of its duties any liabilities with respect to investments issued by such entity, as applicable, in their respective commercial capacities;
(viii) neither the Trustee nor the Certificate Administrator hereunder shall be personally liable hereunder by reason of any act or obligations failure to act of any predecessor or successor Trustee or Certificate Administrator hereunder;
(viiix) For all purposes under this Agreementneither the Trustee nor the Certificate Administrator shall be required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder;
(x) in no event shall the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God;
(xi) other than in the case of actual fraud (as determined by a non-appealable final court order), neither the Trustee nor the Certificate Administrator shall be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action;
(xii) except as otherwise expressly set forth in this Agreement, Computershare Trust Company, National Association, acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Computershare Trust Company, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Computershare Trust Company, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Computershare Trust Company, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have notice one or more of the same Responsible Officers; provided, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions;
(xiii) nothing herein shall be construed as an obligation of the parties to this Agreement to advise the Certificateholders with respect to their rights and protections relative to the Trust; and
(xiv) nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law. Except as otherwise specifically provided herein, each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Xxxxxxxxx, 00x-0 Information Provider, paying agent and Authenticating Agent).
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any Servicer Termination Event unless a Responsible Officer of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice shall be brought in its name for the benefit of any event which is all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) In order to comply with laws, rules, regulations and executive orders in fact such a default is received by effect from time to time applicable to banking institutions, including those relating to the Trustee or funding of terrorist activities and money laundering (“Applicable Banking Law”), the Certificate Administrator at and the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerTrustee, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor are required to obtain, verify and record certain information relating to individuals and entities that maintain a business relationship with the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that or the Trustee’s or . Accordingly, each of the parties hereto agrees to provide to the Certificate Administrator’sAdministrator and the Trustee, upon its respective request from time to time, such identifying information and documentation as applicable, negligence or willful misconduct was may be available for such party in order to enable the primary cause of such insufficiencyCertificate Administrator and the Trustee to comply with Applicable Banking Law.
Appears in 7 contracts
Samples: Trust and Servicing Agreement (Benchmark 2022-B35 Mortgage Trust), Trust and Servicing Agreement (Bank 2022-Bnk41), Trust and Servicing Agreement (Benchmark 2022-B34 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(viii) Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of Xxxxx Fargo Bank, National Association acting in its capacity as an Outside Servicer, except where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless written notice the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (i), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (UBS Commercial Mortgage Trust 2017-C1), Pooling and Servicing Agreement (CD 2017-Cd4 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2017-P7)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the Special Servicer same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P4), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2016-C34), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(viii) Except as otherwise expressly set forth in this Agreement, knowledge or information acquired by (i) Xxxxx Fargo Bank, National Association, as applicable, in any of its respective capacities hereunder or under any other document related to this transaction shall not be imputed to Xxxxx Fargo Bank, National Association in any of its other capacities hereunder or under such other documents, and (ii) any Affiliate of Xxxxx Fargo Bank, National Association shall not be imputed to Xxxxx Fargo Bank, National Association in any of its respective capacities hereunder and vice versa.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless written notice the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the Special Servicer same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P4), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-C1), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve the Trustee or the Certificate Administrator be relieved of its duties or obligations hereunder;
(vii) For all purposes under Except as otherwise expressly set forth in this Agreement, neither the Trustee nor the Certificate Administrator shall Computershare Trust Company, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Computershare Trust Company, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Computershare Trust Company, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Computershare Trust Company, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; and
(viii) For purposes of this Agreement, the Trustee or the Certificate Administrator, as applicable, shall have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause any event which is in fact such Trust REMIC to fail to qualify as a default is received REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any time that any Certificates are outstanding or subject a Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (BMO 2022-C3 Mortgage Trust), Pooling and Servicing Agreement (BMO 2022-C2 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2022-Gc48)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Benchmark 2019-B14 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2019-C7), Pooling and Servicing Agreement (Benchmark 2019-B15 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation of matters arising under this Agreement or into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense costs, expense, or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; provided that the Trustee or the Certificate Administrator of its Administrator, as the case may be, may not perform any duties or obligations hereunder;hereunder through any Person that is a Prohibited Party; and
(vii) For all purposes under of this Agreement, neither the Trustee nor or the Certificate Administrator Administrator, as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a default is received grantor trust.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerGod, as the case may bestrikes, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or lockouts, riots and acts of the Depositor; andwar).
(ixe) Neither In order to comply with the Trustee nor laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that or the Trustee’s or Certificate Administrator’s, as applicable, negligence is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Certificate Administrator or willful misconduct was the primary cause Trustee, as applicable,. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such insufficiencyidentifying information and documentation as may be available for such party in order to enable the Certificate Administrator and the Trustee to comply with Applicable Laws.
(f) Each of the Certificate Administrator, Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee hereunder in the same manner as if such party were the named Trustee herein.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the Special Servicer same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) The Custodian shall be entitled to the same rights, indemnities, immunities, benefits (other than compensation), privileges and protections afforded to the Certificate Administrator hereunder in the same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(g) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(h) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(i) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (i), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (CD 2017-Cd6 Mortgage Trust), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2017-C4), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2017-C34)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Xxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2014-C20), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation of matters arising under this Agreement or into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense costs, expense, or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; provided that the Trustee or the Certificate Administrator of its Administrator, as the case may be, may not perform any duties or obligations hereunder;hereunder through any Person that is a Prohibited Party; and
(vii) For all purposes under of this Agreement, neither the Trustee nor or the Certificate Administrator Administrator, as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC, at any event which is in fact such a default is received time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerGod, as the case may bestrikes, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or lockouts, riots and acts of the Depositor; andwar).
(ixe) Neither In order to comply with the Trustee nor laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that or the Trustee’s or Certificate Administrator’s, as applicable, negligence is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Certificate Administrator or willful misconduct was the primary cause Trustee, as applicable,. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such insufficiencyidentifying information and documentation as may be available for such party in order to enable the Certificate Administrator and the Trustee to comply with Applicable Laws.
(f) Each of the Certificate Administrator, Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee hereunder in the same manner as if such party were the named Trustee herein.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2020-Gsa2), Pooling and Servicing Agreement (Benchmark 2020-B21 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2020-B20 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and with respect to the Trustee, to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation (and such expense shall be allocated in accordance with the allocation provisions of the Co-Lender Agreement);
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8 (other than investments made with the Certificate Administrator in its commercial capacity); and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage. In no event shall either the Trustee, the Servicer, the Special Servicer or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct, as applicable. Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided in any event which is in fact such a default is received event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references the Certificates suit, action or this Agreement;
(viii) Neither proceeding instituted by the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was shall be brought in its name for the primary cause benefit of all the Holders of such insufficiencyCertificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee and the Certificate Administrator, as applicable, is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee and the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, as applicable, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Laws.
Appears in 4 contracts
Samples: Trust and Servicing Agreement (BBCMS Mortgage Trust 2019-C5), Trust and Servicing Agreement (UBS Commercial Mortgage Trust 2019-C17), Trust and Servicing Agreement (BBCMS Mortgage Trust 2019-C4)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 4 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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and with respect to the Trustee, to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation (and such expense shall be allocated in accordance with the allocation provisions of the Co-Lender Agreement);
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8 (other than investments made with the Certificate Administrator in its commercial capacity); and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage. In no event shall either the Trustee, the Servicer, the Special Servicer or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct, as applicable. Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided in any event which is in fact such a default is received event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references the Certificates suit, action or this Agreement;
(viii) Neither proceeding instituted by the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was shall be brought in its name for the primary cause benefit of all the Holders of such insufficiencyCertificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee and the Certificate Administrator, as applicable, is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee and the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, as applicable, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Laws.
Appears in 4 contracts
Samples: Trust and Servicing Agreement (BBCMS Mortgage Trust 2019-C4), Trust and Servicing Agreement (CSAIL 2019-C15 Commercial Mortgage Trust), Trust and Servicing Agreement (CSAIL 2018-C14 Commercial Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Opinion of Counsel, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyTrustee, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunderselected by it with due care;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice damage; and
(viii) the Certificate Administrator and its Affiliates are permitted to receive additional compensation that could be deemed to be in the Certificate Administrator’s economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. Such compensation shall not be an amount that is reimbursable or payable by the Trust or any other party pursuant to this Agreement.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any event which is in fact such a default is received of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates Trustee or the Certificate Administrator, as applicable, shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) Neither In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee nor and the Certificate Administrator are required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, upon its request from time to time such identifying information (including, without limitation, such party’s name, physical address, tax identification number, organizational documents, certificate of good standing (or an equivalent), and license to do business) and such other documentation as may be available for such party in order to enable the Trustee and the Certificate Administrator to comply with Applicable Laws.
(e) Each of the Trustee and the Certificate Administrator shall be responsible for any act or omission entitled to all of the Master Servicer or the Special Servicer (unless same rights, protections, immunities and indemnities afforded to it as the Trustee is acting as Master Servicer or Special Servicerand Certificate Administrator, as the case may be, in each capacity for which case it serves hereunder (including, without limitation, as Custodian, Certificate Registrar and Authenticating Agent).
(f) To the extent of any ambiguity in the interpretation of any definition, provision or term contained in this Agreement or to the extent that more than one methodology can be used to make any of the determinations or calculations set forth herein, the Trustee shall only and Certificate Administrator, as the case may be, may request written direction from the Depositor (and the Depositor may, but is not obligated to, provide such written direction) as to the interpretation and/or methodology to be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither used, and the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or and Certificate Administrator’s, as applicable, negligence shall be entitled to conclusively rely on any such direction provided by the Depositor without responsibility or willful misconduct was the primary cause of such insufficiencyliability therefore.
Appears in 4 contracts
Samples: Trust and Servicing Agreement (CSAIL 2016-C7 Commercial Mortgage Trust), Trust and Servicing Agreement (CSAIL 2016-C6 Commercial Mortgage Trust), Trust and Servicing Agreement (Morgan Stanley Capital I Trust 2016-Ubs9)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee and the Certificate Administrator each may request, and may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee and the Certificate Administrator each may consult with counsel and the written advice of such counsel or and any Opinion opinion of Counsel counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or opinion of counsel;
(iii) Neither the Trustee nor and the Certificate Administrator shall not be under any obligation to exercise any of the trusts or powers vested remedies after default as specified in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation relating hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or documentdocument (provided the same appears regular on its face), unless requested in writing to do so by Holders of Certificates entitled to more than 50evidencing at least 25% of the Voting RightsRights of all the Certificates; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in connection with the making of such investigation foregoing is, in the opinion of the Trustee or the Certificate Administrator, respectively, such Person not reasonably assured to the Trustee or the Certificate Administrator such Person by the security afforded to it by the terms of this Agreement, such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to proceeding. The reasonable expenses of the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the Certificateholders requesting Holderssuch examination;
(viiv) The the Trustee or and the Certificate Administrator each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee and the Certificate Administrator conferred on them by such appointment; provided that (i) each of the Trustee and the Certificate Administrator, as the case may be, shall continue to be responsible for its duties and obligations hereunder as if it had not relieve retained such agent or attorney and (ii) the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party without the consent of the Depositor acting in its sole discretion;
(v) neither the Trustee nor the Certificate Administrator (in its capacity as such) shall be required to obtain a deficiency judgment against a Mortgagor;
(vi) neither the Trustee nor the Certificate Administrator shall be liable for any loss on any investment of its duties or obligations hereunder;funds pursuant to this Agreement; and
(vii) For all purposes under this Agreementunless otherwise specifically required by law, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any surety or bond of any Servicer Termination Event kind in connection with the execution or performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee shall have received a Responsible Officer Nondisqualification Opinion at the expense of the Person desiring to contribute such assets with respect to such contribution.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Trustee.
(e) The Certificate Administrator shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise out of a breach by the Certificate Administrator of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2012-C4)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencyevent.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Benchmark 2021-B28 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2020-B17 Mortgage Trust), Pooling and Servicing Agreement (Benchmark 2021-B27 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Trust Certificateholders, pursuant to the provisions of this Agreement, unless such Trust Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Trust Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Trust Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; providedagents, however, that the appointment of such agents Affiliates or attorneys but shall not relieve the Trustee or the Certificate Administrator be relieved of its duties or obligations hereunder;
(vii) For all purposes under of this Agreement, neither the Trustee nor or the Certificate Administrator Administrator, as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event;
(viii) Except as otherwise expressly set forth in this Agreement, Citibank N.A. acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Citibank N.A., acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Citibank N.A., acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Citibank N.A., or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; and
(ix) Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless written notice the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause any event which is in fact such Trust REMIC to fail to qualify as a default is received REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any time that any Trust Certificates are outstanding or subject a Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Trust Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Trust Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Trust Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Back-Up Advancing Agent, the Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (BMO 2023-C7 Mortgage Trust), Pooling and Servicing Agreement (BBCMS Mortgage Trust 2024-C30), Pooling and Servicing Agreement (BMO 2024-C10 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, Administrator reasonable security or indemnity against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(d) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8; and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage. In no event shall either the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct, as applicable. Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided in any event which is in fact such a default is received event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates Trustee or the Certificate Administrator, as applicable, shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) Neither In order to comply with the Trustee nor laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Banking Law”), the Certificate Administrator shall be responsible for any act or omission of and the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerTrustee, as the case may be, in are required to obtain, verify and record certain information relating to individuals and entities which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor maintain a business relationship with the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that and the Trustee’s or . Accordingly, each of the parties agrees to provide to the Certificate Administrator’sAdministrator and the Trustee, upon its respective request from time to time, such identifying information and documentation as applicable, negligence or willful misconduct was may be available for such party in order to enable the primary cause of such insufficiencyCertificate Administrator and the Trustee to comply with Applicable Banking Law.
Appears in 3 contracts
Samples: Trust and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P6), Trust and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P5), Trust and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C30)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel and the accountants, and any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the CertificateholdersTrust Interest Owners, pursuant to the provisions of this Agreement, unless such Certificateholders Trust Interest Owner shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event, as applicable, that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve be relieved of its obligations by virtue of the use of any such agent or attorney;
(vii) no provision of this Agreement or of the Certificates shall require the Trustee or the Certificate Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or obligations thereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(viii) the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement other than as set forth in Section 3.8 (and other than investments made with the Certificate Administrator as an obligor on such investments in its individual commercial capacity);
(ix) neither the Trustee nor the Certificate Administrator shall be required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder;
(viix) For all purposes under this Agreementneither the Trustee nor the Certificate Administrator, as applicable, hereunder shall be personally liable hereunder by reason of any act or failure to act of any predecessor or successor Trustee or Certificate Administrator, as applicable, hereunder.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be deemed to have notice enforced by such party without the possession of any Servicer Termination Event unless a Responsible Officer of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice shall be brought in its name for the benefit of any event all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (“Applicable Laws”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities which is in fact such maintain a default is received by business relationship with the Trustee or the Certificate Administrator at Administrator, as applicable. Accordingly, each of the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither parties agrees to provide to the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the primary cause of such insufficiencyTrustee to comply with Applicable Laws.
Appears in 3 contracts
Samples: Trust and Servicing Agreement (Benchmark 2024-V10 Mortgage Trust), Trust and Servicing Agreement (BBCMS Mortgage Trust 2024-5c29), Trust and Servicing Agreement (Bank5 2024-5yr9)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Rxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C19), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C18)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination an Event of Default (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee[, the Certificate Administrator Administrator] nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Trust Advisor, as applicable, if an Event of Default or Trust Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Trust Advisor, respectively and if such investigation results from such Event of Default or Trust Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written received notice of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any event which is provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in fact such the Trust Fund will not cause either Trust REMIC to fail to qualify as a default is received REMIC at any time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a grantor trust under subpart E, part I of subchapter J of the Code.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer may be available for such party in order to enable the Trustee to comply with Applicable Laws.
(f) Notwithstanding anything to the contrary herein, any and all communications (both text and attachments) by or Special Servicer, as from the case may beCertificate Administrator, in which case the Trustee shall only be responsible for any of its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor capacities, that the Certificate Administrator shall in any way its sole discretion deems to contain confidential, proprietary, and/or sensitive information and sent by electronic mail will be liable encrypted. The recipient of the e-mail communication will be required to complete a one-time registration process. Information and assistance on registering and using the e-mail encryption technology can be found at the Certificate Administrator's secure website [______] or by reason of any insufficiency calling [______] (in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s U.S.) or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency[______] at any time.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (RBS Commercial Funding Inc.), Pooling and Servicing Agreement (Barclays Commercial Mortgage Securities LLC), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Rxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C16), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2013-C16), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2013-C15)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneysattorneys selected by it with due care; provided, however, provided that the appointment each of such agents or attorneys shall not relieve the Trustee or and the Certificate Administrator shall remain obligated and liable for the performance of its obligations and duties hereunder without diminution of such obligation or obligations hereunderliability by virtue of its use of agents or attorneys, and to the same extent and under the same terms and conditions as if it alone were performing such duties as required hereby;
(vii) For all purposes under this Agreementnone of the Certificate Administrator, the Trustee, the Servicer or the Special Servicer shall be liable for the performance by any other such party hereto, or for the failure of any other such party hereto to perform, its obligations and duties hereunder unless the Certificate Administrator, the Trustee, the Servicer or the Special Servicer, as applicable, is also acting in that other capacity;
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator, as applicable, be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice of any damage;
(ix) in no event which is in fact such a default is received by shall the Trustee or the Certificate Administrator at be liable for any failure or delay in the respective Corporate Trust Officeperformance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, and such notice references bad faith or willful misconduct; and
(x) nothing herein shall require the Certificates Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law. Except as otherwise expressly set forth in this Agreement;, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided however, knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions and knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.
(viiib) Neither Following the Closing Date, neither the Trustee nor the Certificate Administrator shall be responsible for accept any act contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or omission actions under this Agreement or under any of the Master Servicer Certificates, enforceable by the Trustee may be enforced by it without the possession of any of the Certificates, or the Special Servicer (unless production thereof at the Trustee is acting as Master Servicer trial or Special Servicerother proceeding relating thereto, as the case may beand any such suit, in which case action or proceeding instituted by the Trustee shall only be responsible brought in its name for its own actions as Master Servicer or Special Servicerthe benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) or In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the Depositor; and
USA Patriot Act of the United States (ix) Neither “Applicable Law”), the Trustee nor and the Certificate Administrator shall in any way be liable by reason of any insufficiency in are required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trust Fund unless it is determined by a court of competent jurisdiction that Trustee or the Trustee’s or Certificate Administrator’s. Accordingly, each of the parties agrees to provide to the Trustee or the Certificate Administrator, upon their request from time to time such identifying information and documentation as applicable, negligence or willful misconduct was may be available for such party in order to enable the primary cause of such insufficiencyTrustee and the Certificate Administrator to comply with Applicable Law.
Appears in 3 contracts
Samples: Trust and Servicing Agreement (Morgan Stanley Capital I Trust 2016-Bnk2), Trust and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C31), Trust and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C30)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, Administrator reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyTrustee, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunderselected by it with due care;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreementdamage;
(viii) Neither the Trustee nor the Certificate Administrator shall and its Affiliates are permitted to receive additional compensation that could be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, deemed to be in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the TrusteeAdministrator’s economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.sub-custodian with respect to certain Permitted Investments,
Appears in 2 contracts
Samples: Trust and Servicing Agreement (GS Mortgage Securities Trust 2016-Gs3), Trust and Servicing Agreement (Gs Mortgage Securities Corp Ii)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Xxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2014-C20)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause any event which is in fact such Trust REMIC to fail to qualify as a default is received REMIC at any time that any Certificates are outstanding or subject any Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a grantor trust under subpart E, part I of subchapter J of the Code.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer or Special Servicer, as the case may be, be available for such party in which case order to enable the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicerto comply with Applicable Laws.
(f) or Each of the Depositor; and
(ix) Neither Certificate Administrator, Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined by a court of competent jurisdiction that same manner as if such party were the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencynamed Trustee herein.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate reasonable indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Rxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C22), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C21)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause a Trust REMIC to fail to qualify as a REMIC at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer or Special Servicer, as the case may be, be available for such party in which case order to enable the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicerto comply with Applicable Laws.
(f) or Each of the Depositor; and
(ix) Neither Certificate Administrator, Custodian, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined by a court of competent jurisdiction that same manner as if such party were the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencynamed Trustee herein.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Certificate Administrator, Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the Special Servicer same rights, indemnities, immunities, benefits (unless other than compensation), privileges and protections afforded to the Trustee is acting hereunder in the same manner as Master Servicer if such party were the named Trustee herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by or Special Servicer, as the case may be, in which case from the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Trust Certificateholders, pursuant to the provisions of this Agreement, unless such Trust Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Benchmark 2024-V11 Mortgage Trust), Pooling and Servicing Agreement (BMO 2024-5c7 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee and the Certificate Administrator each may request, and may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee and the Certificate Administrator each may consult with counsel and the written advice of such counsel or and any Opinion opinion of Counsel counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or opinion of counsel;
(iii) Neither the Trustee nor and the Certificate Administrator shall not be under any obligation to exercise any of the trusts or powers vested remedies after default as specified in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation relating hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or documentdocument (provided the same appears regular on its face), unless requested in writing to do so by Holders of Certificates entitled to more than 50evidencing at least 25% of the Voting RightsRights of all the Certificates; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in connection with the making of such investigation foregoing is, in the opinion of the Trustee or the Certificate Administrator, respectively, such Person not reasonably assured to the Trustee or the Certificate Administrator such Person by the security afforded to it by the terms of this Agreement, such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to proceeding. The reasonable expenses of the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the Certificateholders requesting Holderssuch examination;
(viiv) The the Trustee or and the Certificate Administrator each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee and the Certificate Administrator conferred on them by such appointment; provided that (i) each of the Trustee and the Certificate Administrator, as the case may be, shall continue to be responsible for its duties and obligations hereunder as if it had not relieve retained such agent or attorney and (ii) the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party without the consent of the Depositor acting in its sole discretion;
(v) neither the Trustee nor the Certificate Administrator (in its capacity as such) shall be required to obtain a deficiency judgment against a Mortgagor;
(vi) neither the Trustee nor the Certificate Administrator shall be liable for any loss on any investment of its duties or obligations hereunder;funds pursuant to this Agreement; and
(vii) For all purposes under this Agreementunless otherwise specifically required by law, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any surety or bond of any Servicer Termination Event kind in connection with the execution or performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee shall have received a Responsible Officer Nondisqualification Opinion at the expense of the Person desiring to contribute such assets with respect to such contribution.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by the Trustee without the possession of any of the Certificates, or the production thereof at the trial or any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) ”prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Trustee.
(e) The Certificate Administrator shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) ”prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise out of a breach by the Certificate Administrator of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2012-C6)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination an Event of Default (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if an Event of Default or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Event of Default or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written received notice of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any event which is provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in fact such the Trust Fund will not cause either Trust REMIC to fail to qualify as a default is received REMIC at any time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a grantor trust under subpart E, part I of subchapter J of the Code.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer may be available for such party in order to enable the Trustee to comply with Applicable Laws.
(f) Notwithstanding anything to the contrary herein, any and all communications (both text and attachments) by or Special Servicer, as from the case may beCertificate Administrator, in which case the Trustee shall only be responsible for any of its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor capacities, that the Certificate Administrator shall in any way its sole discretion deems to contain confidential, proprietary, and/or sensitive information and sent by electronic mail will be liable encrypted. The recipient of the e-mail communication will be required to complete a one-time registration process. Information and assistance on registering and using the e-mail encryption technology can be found at the Certificate Administrator’s secure website wxx.xxxxxxxxx.xxx/xxxxxxxxx/xxxxxxx/xxxxxxx/xxxxx.xxx or by reason of any insufficiency calling (000) 000-0000 (in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s U.S.) or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency(000) 000-0000 at any time.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee and the Certificate Administrator each may request, and may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee and the Certificate Administrator each may consult with counsel and the written advice of such counsel or and any Opinion opinion of Counsel counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or opinion of counsel;
(iii) Neither the Trustee nor and the Certificate Administrator shall not be under any obligation to exercise any of the trusts or powers vested remedies after default as specified in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation relating hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or documentdocument (provided the same appears regular on its face), unless requested in writing to do so by Holders of Certificates entitled to more than 50evidencing at least 25% of the Voting RightsRights of all the Certificates; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in connection with the making of such investigation foregoing is, in the opinion of the Trustee or the Certificate Administrator, respectively, such Person not reasonably assured to the Trustee or the Certificate Administrator such Person by the security afforded to it by the terms of this Agreement, such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to proceeding. The reasonable expenses of the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the Certificateholders requesting Holderssuch examination;
(viiv) The the Trustee or and the Certificate Administrator each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such which agents or attorneys shall not relieve have any or all of the rights, powers, duties and obligations of the Trustee or and the Certificate Administrator conferred on them by such appointment; provided that each of the Trustee and the Certificate Administrator, as the case may be, shall continue to be responsible for its duties and obligations hereunder as if it had not retained such agent or obligations hereunderattorney;
(v) neither the Trustee nor the Certificate Administrator (in its capacity as such) shall be required to obtain a deficiency judgment against a Mortgagor;
(vi) neither the Trustee nor the Certificate Administrator shall be liable for any loss on any investment of funds pursuant to this Agreement; and
(vii) For all purposes under this Agreementunless otherwise specifically required by law, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any surety or bond of any Servicer Termination Event kind in connection with the execution or performance of its duties hereunder.
(b) Following the Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee shall have received a Responsible Officer Nondisqualification Opinion at the expense of the Person desiring to contribute such assets with respect to such contribution.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Trustee.
(e) The Certificate Administrator shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only to the extent such taxes arise out of a breach by the Certificate Administrator of its obligations hereunder, which breach constitutes negligence, bad faith or willful misconduct of the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2011-C3), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2011-C3)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate reasonable indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Xxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C25), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C23)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause a Trust REMIC to fail to qualify as a REMIC at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer or Special Servicer, as the case may be, be available for such party in which case order to enable the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicerto comply with Applicable Laws.
(f) or Each of the Depositor; and
(ix) Neither Certificate Administrator, Custodian, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined by a court of competent jurisdiction that same manner as if such party were the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencynamed Trustee herein.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written received notice of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any event which is provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in fact such the Trust Fund will not cause any Trust REMIC to fail to qualify as a default is received REMIC at any time that any Certificates are outstanding or subject any Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a grantor trust under subpart E, part I of subchapter J of the Code.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer or Special Servicer, as the case may be, be available for such party in which case order to enable the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicerto comply with Applicable Laws.
(f) or Each of the Depositor; and
(ix) Neither Certificate Administrator, Custodian, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined by a court of competent jurisdiction that same manner as if such party were the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencynamed Trustee herein.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
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)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and with respect to the Trustee, to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more Certificateholders evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation (and such expense shall be allocated in accordance with the allocation provisions of the Co-Lender Agreement);
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8 (other than investments made with the Certificate Administrator in its commercial capacity); and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage. In no event shall either the Trustee, the Servicer, the Special Servicer or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct, as applicable. Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided in any event which is in fact such a default is received event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references the Certificates suit, action or this Agreement;
(viii) Neither proceeding instituted by the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was shall be brought in its name for the primary cause benefit of all the Holders of such insufficiencyCertificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee and the Certificate Administrator, as applicable, is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee and the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, as applicable, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Laws.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (Bank 2020-Bnk25), Trust and Servicing Agreement (Bank 2019-Bnk23)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate reasonable indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Rxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C23), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C22)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, Opinion of Counsel, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyTrustee, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; providedagents, howevernominees, that the appointment of such agents custodians or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunderselected by it with due care;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice damage; and
(viii) the Certificate Administrator and its Affiliates are permitted to receive additional compensation that could be deemed to be in the Certificate Administrator’s economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. Such compensation shall not be an amount that is reimbursable or payable by the Trust or any other party pursuant to this Agreement.
(ix) nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law; and
(x) nothing herein shall be construed as an obligation for any party to this Agreement to advise a Certificateholder with respect to its rights and protections relative to the Trust.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any event which is in fact such a default is received of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates Trustee or the Certificate Administrator, as applicable, shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) Neither In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee nor and the Certificate Administrator are required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, upon its request from time to time such identifying information (including, without limitation, such party’s name, physical address, tax identification number, organizational documents, certificate of good standing (or an equivalent), and license to do business) and such other documentation as may be available for such party in order to enable the Trustee and the Certificate Administrator to comply with Applicable Laws.
(e) Each of the Trustee and the Certificate Administrator shall be responsible for any act or omission entitled to all of the Master Servicer or the Special Servicer (unless same rights, protections, immunities and indemnities afforded to it as the Trustee is acting as Master Servicer or Special Servicerand Certificate Administrator, as the case may be, in each capacity for which case it serves hereunder (including, without limitation, as Custodian, Certificate Registrar and Authenticating Agent).
(f) To the extent of any ambiguity in the interpretation of any definition, provision or term contained in this Agreement or to the extent that more than one methodology can be used to make any of the determinations or calculations set forth herein, the Trustee shall only and Certificate Administrator, as the case may be, may request written direction from the Depositor (and the Depositor may, but is not obligated to, provide such written direction) as to the interpretation and/or methodology to be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither used, and the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or and Certificate Administrator’s, as applicable, negligence shall be entitled to conclusively rely on any such direction provided by the Depositor without responsibility or willful misconduct was the primary cause of such insufficiencyliability therefore.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (CSAIL 2017-Cx9 Commercial Mortgage Trust), Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2017-C39)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate reasonable indemnity satisfactory to it against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency. Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Rxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C24), Pooling and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2014-C24)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, Administrator reasonable security or indemnity against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(d) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8 (other than investments made with the Certificate Administrator in its commercial capacity); and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice damage.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any event which is in fact such a default is received of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates Trustee or the Certificate Administrator, as applicable, shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) Neither In order to comply with the Trustee nor laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Banking Law”), the Certificate Administrator shall be responsible for any act or omission of and the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerTrustee, as the case may be, in are required to obtain, verify and record certain information relating to individuals and entities which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor maintain a business relationship with the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that and the Trustee’s or . Accordingly, each of the parties agrees to provide to the Certificate Administrator’sAdministrator and the Trustee, upon its respective request from time to time, such identifying information and documentation as applicable, negligence or willful misconduct was may be available for such party in order to enable the primary cause of such insufficiencyCertificate Administrator and the Trustee to comply with Applicable Banking Law.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2016-C35), Trust and Servicing Agreement (SG Commercial Mortgage Securities Trust 2016-C5)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, Administrator reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyTrustee, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunderselected by it with due care;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage;
(viii) the Certificate Administrator and its Affiliates are permitted to receive additional compensation that could be deemed to be in the Certificate Administrator’s economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. Such compensation shall not be an amount that is reimbursable or payable by the Trust or any other party pursuant to this Agreement;
(ix) except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; provided, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions;
(x) nothing herein shall require the Trustee or the Certificate Administrator to act in any event which manner that is in fact such a default is received contrary to applicable law; and
(xi) nothing herein shall be construed as an obligation of the parties to this Agreement to advise the Certificateholders with respect to their rights and protections relative to the Trust.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates Trustee or the Certificate Administrator, as applicable, shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) Neither In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee nor and the Certificate Administrator are required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee and the Certificate Administrator to comply with Applicable Laws.
(e) Each of the Trustee and the Certificate Administrator shall be responsible for any act or omission entitled to all of the Master Servicer or the Special Servicer (unless same rights, protections, immunities and indemnities afforded to it as the Trustee is acting as Master Servicer or Special Servicerand Certificate Administrator, as the case may be, in each capacity for which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
it serves hereunder (ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’sincluding, without limitation, as applicableCustodian, negligence or willful misconduct was the primary cause of such insufficiencyCertificate Xxxxxxxxx, 00x-0 Information Provider and Authenticating Agent).
Appears in 2 contracts
Samples: Trust and Servicing Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5), Trust and Servicing Agreement (GS Mortgage Securities Trust 2017-Gs5)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee or the Certificate Administrator, as applicable, of the obligationobligations, upon the occurrence of a Servicer Termination an Event of Default (which has not been curedcured or waived) of which a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if an Event of Default or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Event of Default or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written received notice of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any event which is provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in fact such the Trust Fund will not cause either Trust REMIC to fail to qualify as a default is received REMIC at any time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) The rights, protections and immunities afforded to the Trustee and Certificate Administrator under this Article VIII shall also be afforded to the Certificate Registrar, Paying Agent, the 17g-5 Information Provider and Authenticating Agent.
(e) The Trustee, the Certificate Administrator and their respective Affiliates are permitted to receive additional compensation that could be deemed to be in their economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. Such compensation shall not be an amount that is reimbursable or payable by the Trust Fund or any other party pursuant to this Agreement.
(f) Notwithstanding anything to the contrary herein, any and all communications (both text and attachments) by or from the Trustee, in any of its capacities, that the Trustee in its sole discretion deems to contain confidential, proprietary, and/or sensitive information and sent by electronic mail will be encrypted. The recipient of the e-mail communication will be required to complete a one-time registration process. Information and assistance on registering and using the e-mail encryption technology can be found at the Trustee's secure website [_______] or by calling [_______] (in the U.S.) or [_______] at any time. Neither the Trustee nor the Certificate Administrator shall be responsible for have any act or omission duty to conduct any affirmative investigation as to the occurrence of any condition requiring the Master Servicer repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason eligibility of any insufficiency in the Trust Fund unless it is determined by a court Mortgage Loan for purposes of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencythis Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CCRE Commercial Mortgage Securities, L.P.)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.01Sections 8.1, 8.5(c) and 8.13:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel counsel, and the any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be, that a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, has actual knowledge of (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man Person would exercise or use under the circumstances in the conduct of his such Person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator or any of their directors, officer or employees shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunderselected by it with due care;
(vii) For all purposes under this Agreement, neither each of the Trustee nor and the Certificate Administrator shall not be deemed to have notice liable for any loss on any investment of any Servicer Termination Event unless a Responsible Officer of funds made by the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice pursuant to the terms of any event which is in fact such a default is received by this Agreement, provided, however, this clause (vii) shall not relieve the Trustee or the Certificate Administrator at the (solely in their respective Corporate Trust Officecommercial capacities and not in their respective capacities hereunder) of any liabilities with respect to investments issued by such entity, and such notice references the Certificates or this Agreementas applicable, in their respective commercial capacities;
(viii) Neither neither the Trustee nor the Certificate Administrator hereunder shall be personally liable hereunder by reason of any act or failure to act of any predecessor or successor Trustee or Certificate Administrator hereunder;
(ix) neither the Trustee nor the Certificate Administrator shall be responsible required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder; and
(x) in no event shall the Trustee or the Certificate Administrator be liable for any act failure or omission delay in the performance of its obligations hereunder due to force majeure or acts of God. Except as otherwise specifically provided herein, each of the Master Servicer or Trustee and the Special Servicer (unless Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee is acting as Master Servicer or Special Servicerand Certificate Administrator, as the case may be, in each capacity for which case the Trustee shall only be responsible for its own actions it serves hereunder (including, without limitation, as Master Servicer or Special Servicer) or of the Depositor; andCustodian, Certificate Xxxxxxxxx, 00x-0 Information Provider, paying agent and Authenticating Agent).
(ixb) Neither Following the Closing Date, neither the Trustee nor the Certificate Administrator shall in accept any way be liable by reason contribution of any insufficiency in assets to the Trust Fund unless it is determined not specifically contemplated by a court this Agreement.
(c) All rights or actions under this Agreement or under any of competent jurisdiction that the Trustee’s Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Certificate Administrator’s, as applicable, negligence or willful misconduct was shall be brought in its name for the primary cause benefit of all the Holders of such insufficiencyCertificates, subject to the provisions of this Agreement.
(d) In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Banking Law”), the Certificate Administrator and the Trustee, as the case may be, are required to obtain, verify and record certain information relating to individuals and entities that maintain a business relationship with the Certificate Administrator or the Trustee. Accordingly, each of the parties hereto agrees to provide to the Certificate Administrator and the Trustee, upon its respective request from time to time, such identifying information and documentation as may be available for such party in order to enable the Certificate Administrator and the Trustee to comply with Applicable Banking Law.
Appears in 1 contract
Samples: Trust and Servicing Agreement (JPMBB Commercial Mortgage Securities Trust 2015-C28)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a default is received grantor trust.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer or Special Servicer, as the case may be, be available for such party in which case order to enable the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicerto comply with Applicable Laws.
(f) or Each of the Depositor; and
(ix) Neither Certificate Administrator, Custodian, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined by a court of competent jurisdiction that same manner as if such party were the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencynamed Trustee herein.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj16)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause a Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances or cause the Grantor Trust to fail to qualify as a grantor trust.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) In order to comply with the Master Servicer or laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the Special Servicer funding of terrorist activities and money laundering (unless “Applicable Laws”), the Trustee is acting required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as Master Servicer or Special Servicer, as the case may be, be available for such party in which case order to enable the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicerto comply with Applicable Laws.
(f) or Each of the Depositor; and
(ix) Neither Certificate Administrator, Custodian, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined by a court of competent jurisdiction that same manner as if such party were the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencynamed Trustee herein.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel and the accountants, and any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event, as applicable, that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders reasonably satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve be relieved of its obligations by virtue of the use of any such agent or attorney;
(vii) no provision of this Agreement or of the Certificates shall require the Trustee or the Certificate Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or obligations thereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;
(viii) the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement other than as set forth in Section 3.8 (and other than investments made with the Certificate Administrator as an obligor on such investments in its individual commercial capacity);
(ix) neither the Trustee nor the Certificate Administrator shall be required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder;
(viix) For all purposes under this Agreementneither the Trustee nor the Certificate Administrator, as applicable, hereunder shall be personally liable hereunder by reason of any act or failure to act of any predecessor or successor Trustee or Certificate Administrator, as applicable, hereunder.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be deemed to have notice enforced by such party without the possession of any Servicer Termination Event unless a Responsible Officer of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice shall be brought in its name for the benefit of any event all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (“Applicable Laws”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities which is in fact such maintain a default is received by business relationship with the Trustee or the Certificate Administrator at Administrator, as applicable. Accordingly, each of the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither parties agrees to provide to the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the primary cause of such insufficiencyTrustee to comply with Applicable Laws.
Appears in 1 contract
Samples: Trust and Servicing Agreement (GS Mortgage Securities Trust 2020-Gc47)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.01:
(i) The the Trustee and the Certificate Administrator may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer’s 's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee and the Certificate Administrator may consult with counsel of its choice and the written any advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(iv) at all times the Certificate Administrator, and prior to the occurrence of an Event of Default hereunder and after the curing of all Events of Default that may have occurred, the Trustee, in each case, shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by the NIMs Insurer or the Holders of each Class of Certificates evidencing not less than 25% of the Voting Rights of such Class provided, however, that if the payment within a reasonable time to the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Certificate Administrator, not reasonably assured to the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Certificate Administrator may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to so proceeding;
(v) the Trustee and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, accountants or attorneys or independent contractors and the Trustee and the Certificate Administrator will not be responsible for any misconduct or negligence on the part of any agent, custodian, accountant, attorney or independent contractor appointed with due care by it hereunder;
(vi) neither the Trustee nor the Certificate Administrator shall be required to expend its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such liability is not assured to it;
(vii) neither the Trustee nor the Certificate Administrator shall be liable, individually or as Trustee or Certificate Administrator, as applicable, for any loss on any investment of funds pursuant to this Agreement (other than as issuer of the investment security);
(viii) the Trustee shall not be charged with knowledge of any default or Event of Default unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such default or Event of Default or any officer of the Trustee receives written notice of such default or Event of Default at its Corporate Trust Office. In the absence of such notice or actual knowledge, the Trustee may conclusively assume that there is no default or Event of Default;
(ix) the Certificate Administrator shall not be charged with knowledge of any default (other than a default in payment to the Certificate Administrator) unless a Responsible Officer of the Certificate Administrator assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or any officer of the Certificate Administrator receives written notice of such failure or event at its Corporate Trust Office and in the absence of receipt of such notice or actual knowledge, the Certificate Administrator may conclusively assume that there is no default or Event of Default;
(x) neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the NIMs Insurer or the Certificateholders, pursuant to the provisions of this Agreement, unless the NIMs Insurer or such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which that may be incurred therein or thereby;
(xi) the right of the Trustee or the Certificate Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee or the Certificate Administrator shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(xii) if requested by the Servicer, the Trustee shall appoint the Servicer as the trustee's attorney-in-fact in order to carry out and perform certain activities that are necessary or appropriate for the servicing and administration of the Mortgage Loans pursuant to this Agreement. Such appointment shall be evidenced by a power of attorney in such form as may be agreed to by the Trustee and the Servicer. The Trustee shall have no liability for any action or inaction of the Servicer in connection with such power of attorney and the Trustee shall be indemnified by the Servicer for all liabilities, costs, expenses incurred by the Trustee in connection with the Servicer's use or misuse of such powers of attorney; and
(xiii) neither the Trustee nor the Certificate Administrator shall be required to expend give any bond or risk its own funds surety in respect of the execution of the Trust created hereby or otherwise incur the powers granted hereunder.
(b) All rights of action under this Agreement or under any financial liability in of the performance Certificates, enforceable by the Trustee, may be enforced by the Trustee without the possession of any of its duties hereunderthe Certificates, or in the exercise of production thereof at the trial or other proceeding relating thereto, and any of its rights such suit, action or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of the obligationCertificates, upon subject to the occurrence provisions of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) . Neither the Trustee nor the Certificate Administrator nor the Trustee shall be liable for have a duty (A) to see to any action reasonably takenrecording, suffered filing, or omitted by it in good faith and believed by it depositing of this Agreement or any agreement referred to be authorized herein or within the discretion any financing statement or rights continuation statement evidencing a security interest, or powers conferred upon it by this Agreement;
(v) Prior to see to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice maintenance of any Servicer Termination Event unless a Responsible Officer of the Trustee rerecording, refilling or the Certificate Administratorredepositing, as applicable, has actual knowledge thereof thereof, (B) to see to any insurance or unless written notice (C) to see to the payment or discharge of any event which is in fact such a default is received by the Trustee tax, assessment, or the Certificate Administrator at the respective Corporate Trust Officeother governmental charge or any lien or encumbrance of any kind owing with respect to, and such notice references the Certificates assessed or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for levied against, any act or omission part of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencyFund.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Mortgage Loan Trust, Series 2005-Wmc1)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, Administrator reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyTrustee, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunderselected by it with due care;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice damage; and
(viii) the Certificate Administrator and its Affiliates are permitted to receive additional compensation that could be deemed to be in the Certificate Administrator’s economic self-interest for (i) serving as investment advisor, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain Permitted Investments, (ii) using affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. Such compensation shall not be an amount that is reimbursable or payable by the Trust or any other party pursuant to this Agreement.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any event which is in fact such a default is received of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates Trustee or the Certificate Administrator, as applicable, shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;.
(viiid) Neither In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee nor and the Certificate Administrator are required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee and the Certificate Administrator to comply with Applicable Laws.
(e) Each of the Trustee and the Certificate Administrator shall be responsible for any act or omission entitled to all of the Master Servicer or the Special Servicer (unless same rights, protections, immunities and indemnities afforded to it as the Trustee is acting as Master Servicer or Special Servicerand Certificate Administrator, as the case may be, in each capacity for which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
it serves hereunder (ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’sincluding, without limitation, as applicableCustodian, negligence or willful misconduct was the primary cause of such insufficiencyCertificate Registrar and Authenticating Agent).
Appears in 1 contract
Samples: Trust and Servicing Agreement (GS Mortgage Securities Trust 2015-Gs1)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.01:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer’s 's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel and the written any advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts rights or powers vested in it by this Agreement or to make any investigation of matters arising hereunder Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee or the Certificate Administrator, as applicable, shall not be answerable for other than its negligence or willful misconduct in the performance of any such act;
(iv) neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Event of Termination Event hereunder and after the curing of all Servicer Events of Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or documentdocuments, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting RightsMajority Certificateholder; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such cost, expense or liability as a condition to taking any such actionproceeding. The reasonable expense of every such reasonable examination shall be paid by the requesting HoldersServicer or, if paid by the Trustee or the Certificate Administrator, shall be reimbursed by the Servicer upon demand. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The neither the Trustee nor the Certificate Administrator shall be accountable, shall have any liability or make any representation as to any acts or omissions hereunder of the Servicer until, in the case of the Certificate Administrator, such time as the Certificate Administrator may be required to act as Servicer pursuant to Section 7.02;
(vii) the Trustee or the Certificate Administrator Administrator, as applicable, may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents attorneys or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, a custodian and neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act misconduct or omission negligence on the part of the Master Servicer any such agent, attorney or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositorcustodian appointed by it with due care; and
(ixviii) Neither the right of the Trustee or the Certificate Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, answerable for other than its negligence or willful misconduct was in the primary cause performance of such insufficiencyact.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (C Bass Mortgage Loan Asset Backed Certs Ser 2002 Cb1)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; ;
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; and
(C) provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Securities Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation of matters arising under this Agreement or into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense costs, expense, or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; provided that the Trustee or the Certificate Administrator of its Administrator, as the case may be, may not perform any duties or obligations hereunder;hereunder through any Person that is a Prohibited Party; and
(vii) For all purposes under of this Agreement, neither the Trustee nor or the Certificate Administrator Administrator, as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC, at any event which is in fact such a default is received time that any Certificates are outstanding or subject either Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement. Other than in the case of actual fraud (as determined by a non-appealable final court order), neither the Trustee nor the Certificate Administrator shall be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts include but are not limited to acts of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special ServicerGod, as the case may bestrikes, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or lockouts, riots and acts of the Depositor; andwar).
(ixe) Neither In order to comply with the Trustee nor laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that or the Trustee’s or Certificate Administrator’s, as applicable, negligence is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Certificate Administrator or willful misconduct was the primary cause Trustee, as applicable. Accordingly, each of the parties agrees to provide to the Trustee, upon its request from time to time such insufficiencyidentifying information and documentation as may be available for such party in order to enable the Certificate Administrator and the Trustee to comply with Applicable Laws.
(f) Each of the Certificate Administrator, Custodian, Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, privileges and protections afforded to the Trustee hereunder in the same manner as if such party were the named Trustee herein.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSAIL 2015-C4 Commercial Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and with respect to the Trustee, to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation (and such expense shall be allocated in accordance with the allocation provisions of the Co-Lender Agreement);
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8 (other than investments made with the Certificate Administrator in its commercial capacity); and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage. In no event shall either the Trustee, the Servicer, the Special Servicer or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct, as applicable. Except as otherwise expressly set forth in this Agreement, Wxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Wxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Wxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided in any event which is in fact such a default is received event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references the Certificates suit, action or this Agreement;
(viii) Neither proceeding instituted by the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was shall be brought in its name for the primary cause benefit of all the Holders of such insufficiencyCertificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee and the Certificate Administrator, as applicable, is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee and the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, as applicable, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Laws.
Appears in 1 contract
Samples: Trust and Servicing Agreement (CSAIL 2017-Cx10 Commercial Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such Opinion of Counsel;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable Administrator security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither provided, however, that nothing contained herein shall relieve the Trustee nor or the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and with respect to the Trustee, to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more Certificateholders evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it either party in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting the investigation (and such expense shall be allocated in accordance with the allocation provisions of the Agreement Between Note Holders);
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys selected by it with due care but shall not relieve the Trustee or the Certificate Administrator thereby be relieved of its duties or obligations hereunderresponsibility for such duties;
(vii) For all purposes under the Certificate Administrator shall not be liable for any loss on any investment of funds made by it pursuant to the terms of this Agreement, Agreement other than as set forth in Section 3.8 (other than investments made with the Certificate Administrator in its commercial capacity); and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual been advised of the likelihood of such loss or damage. In no event shall either the Trustee, the Servicer, the Special Servicer or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct, as applicable. Except as otherwise expressly set forth in this Agreement, Xxxxx Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge thereof of (a) Xxxxx Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or unless written notice (b) Xxxxx Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Xxxxx Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers, provided in any event which is in fact such a default is received event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.
(b) Following the Closing Date, neither the Trustee nor the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references the Certificates suit, action or this Agreement;
(viii) Neither proceeding instituted by the Trustee nor or the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was shall be brought in its name for the primary cause benefit of all the Holders of such insufficiencyCertificates, subject to the provisions of this Agreement.
(d) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee and the Certificate Administrator, as applicable, is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee and the Certificate Administrator, as applicable. Accordingly, each of the parties agrees to provide to the Trustee and the Certificate Administrator, as applicable, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Laws.
Appears in 1 contract
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.1:
(i) The each of the Trustee and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalapproval, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The each of the Trustee and the Certificate Administrator may consult with counsel any nationally recognized counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;
(iii) Neither neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities liabilities, including reasonable legal fees, which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderprovided, or in the exercise of any of its rights or powershowever, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event, as the case may be (which has not been curedcured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of all such Servicer Termination Events which Event or Special Servicer Termination Event that may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to more evidencing, in the aggregate, not less than 5025% of the Voting RightsRights of the outstanding Certificates; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders satisfactory to it against such expense costs, expenses or liability liabilities as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneysattorneys selected by it with due care; provided, however, provided that the appointment each of such agents or attorneys shall not relieve the Trustee or and the Certificate Administrator shall remain obligated and liable for the performance of its obligations and duties hereunder without diminution of such obligation or obligations hereunderliability by virtue of its use of agents or attorneys, and to the same extent and under the same terms and conditions as if it alone were performing such duties as required hereby;
(vii) For all purposes under this Agreementnone of the Certificate Administrator, the Trustee, the Servicer or the Special Servicer shall be liable for the performance by any other such party hereto, or for the failure of any other such party hereto to perform, its obligations and duties hereunder unless the Certificate Administrator, the Trustee, the Servicer or the Special Servicer, as applicable, is also acting in that other capacity; and
(viii) neither the Trustee nor the Certificate Administrator shall be deemed required to have notice post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and in no event shall the Trustee or the Certificate Administrator, as applicable, be liable for punitive, special, indirect or consequential loss or damage of any Servicer Termination Event unless a Responsible Officer of kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof been advised of the likelihood of such loss or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;damage.
(viiib) Neither Following the Closing Date, neither the Trustee nor the Certificate Administrator shall be responsible for accept any act contribution of assets to the Trust Fund not specifically contemplated by this Agreement.
(c) All rights or omission actions under this Agreement or under any of the Master Servicer Certificates, enforceable by the Trustee may be enforced by it without the possession of any of the Certificates, or the Special Servicer (unless production thereof at the Trustee is acting as Master Servicer trial or Special Servicerother proceeding relating thereto, as the case may beand any such suit, in which case action or proceeding instituted by the Trustee shall only be responsible brought in its name for its own actions as Master Servicer or Special Servicerthe benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(d) or In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), each of the Depositor; and
(ix) Neither the Trustee nor and the Certificate Administrator shall in any way be liable by reason of any insufficiency in is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trust Fund unless it is determined by a court of competent jurisdiction that Trustee or the Trustee’s or Certificate Administrator’s, as applicable. Accordingly, each of the parties agrees to provide to the Trustee or the Certificate Administrator, as applicable, negligence or willful misconduct was upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the primary cause of such insufficiencyTrustee to comply with Applicable Laws.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Deutsche Mortgage & Asset Receiving Corp)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Trust Certificateholders, pursuant to the provisions of this Agreement, unless such Trust Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Trust Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Trust Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; providedagents, however, that the appointment of such agents Affiliates or attorneys but shall not relieve the Trustee or the Certificate Administrator be relieved of its duties or obligations hereunder;
(vii) For all purposes under of this Agreement, neither the Trustee nor or the Certificate Administrator Administrator, as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event;
(viii) Except as otherwise expressly set forth in this Agreement, Computershare Trust Company, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Computershare Trust Company, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Computershare Trust Company, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Computershare Trust Company, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; and
(ix) Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless written notice the Trustee or the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause any event which is in fact such Trust REMIC to fail to qualify as a default is received REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any time that any Trust Certificates are outstanding or subject a Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Trust Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Trust Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Trust Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (BMO 2023-C7 Mortgage Trust)
Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:
(ia) The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer’s Certificatecertificate of a Depositor, Servicer or the Backup Servicer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;; 107
(iib) The Trustee and the Certificate Administrator may consult with counsel and the any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such advice or Opinion of Counsel;
(iiic) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or Agreement, other than its obligation to make any investigation of matters arising hereunder give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event of which a Responsible Officer of the Trustee's Corporate Trust Office has actual knowledge (which has not been curedcured or waived), subject to Section 7.03, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;
(vi) The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, neither the Trustee nor the Certificate Administrator shall be deemed to have notice of any Servicer Termination Event unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Ast BCK Sec Inc Madison Ave Trust 2002-A)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;
(viii) Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiencyevent.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2019-Gc43)
Certain Matters Affecting the Trustee and the Certificate Administrator. (a) Except as otherwise provided in Section 8.018.01 of this Agreement:
(i) The Each of the Trustee and the Certificate Administrator may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisalappraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewithwith such the written advice of such counsel or Opinion of Counsel;
(iiiA) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby; and
(B) the right of the Trustee or the Certificate Administrator, as applicable, to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Certificate Administrator shall be required to expend answerable for other than its negligence or risk its own funds or otherwise incur any financial liability willful misconduct in the performance of any of its duties hereundersuch act; provided that subject to the foregoing clause (A), or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of a Servicer Termination Event (which has not been curedcured or waived) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent man person would exercise or use under the circumstances in the conduct of his such person’s own affairs;
(iv) Neither the Trustee nor Trustee, the Certificate Administrator nor any of their respective directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee or the Certificate Administrator, as applicable, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither Neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50at least 25% (or such other percentage as is specified herein) of the Voting RightsPercentage Interests of any affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectivelyas applicable, not reasonably assured to the Trustee or the Certificate Administrator Administrator, as applicable, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectivelyas applicable, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively and if such investigation results from such Servicer Termination Event or Operating Advisor Termination Event, and otherwise by the Certificateholders requesting Holdersthe investigation;
(vi) The Each of the Trustee or and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys but shall not relieve be relieved of its obligations hereunder; and
(vii) For purposes of this Agreement, the Trustee or the Certificate Administrator of its duties or obligations hereunder;
(vii) For all purposes under this AgreementAdministrator, neither the Trustee nor the Certificate Administrator as applicable, shall be deemed to have notice of any Servicer Termination Event unless an event only when a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice or obtains actual knowledge thereof of such event.
(b) Following the Startup Day, neither the Trustee nor the Certificate Administrator shall, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or unless written notice the Certificate Administrator, as applicable, shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause either Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust, at any event which is in fact such time that any Certificates are outstanding or subject a default is received Trust REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee or the Certificate Administrator Administrator, as applicable, may be enforced by it without the possession of any of the Certificates, or the production thereof at the respective Corporate Trust Officetrial or other proceeding relating thereto, and any such notice references suit, action or proceeding instituted by the Certificates or Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement;. Neither the Trustee nor the Certificate Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by the Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
(viiid) Neither the Trustee nor the Certificate Administrator shall be responsible for any act delays or omission failures in performance resulting from acts beyond its control (such acts to include but are not limited to acts of God, strikes, lockouts, riots and acts of war).
(e) Each of the Master Servicer or Custodian, the Special Servicer Rule 17g-5 Information Provider, Authenticating Agent, Paying Agent and Certificate Registrar shall be entitled to the same rights, indemnities, immunities, benefits (unless the Trustee is acting as Master Servicer or Special Servicerother than compensation), as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor; and
(ix) Neither the Trustee nor privileges and protections afforded to the Certificate Administrator shall in any way be liable by reason of any insufficiency hereunder in the Trust Fund unless it is determined same manner as if such party were the named Certificate Administrator herein mutatis mutandis.
(f) Notwithstanding anything to the contrary herein, any and all e-mail communications (both text and attachments) by a court of competent jurisdiction or from the Trustee or the Certificate Administrator that the Trustee’s Trustee or the Certificate Administrator’s, as applicable, negligence deems to contain confidential, proprietary, and/or sensitive information may be encrypted. The recipient (the “E-mail Recipient”) of the encrypted e-mail communication will be required to complete a registration process. Instructions on how to register and/or retrieve an encrypted message will be included in the first secure e-mail sent by the Trustee or willful misconduct was the primary cause Certificate Administrator, as applicable, to the E-mail Recipient.
(g) No provision of this Agreement or any Loan Document shall be deemed to impose any duty or obligation on the Trustee or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the Loan Documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such insufficiencyaction or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on Opinion of Counsel).
(h) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for purposes of this clause (h), “Applicable Law”), each of the Trustee and the Certificate Administrator is required to obtain, verify, record and update certain information relating to individuals and entities that maintain a business relationship with the Trustee or the Certificate Administrator, as applicable. Accordingly, each of the parties hereto agrees to provide to the Trustee or the Certificate Administrator, as applicable, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee or the Certificate Administrator, as applicable, to comply with Applicable Law.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSAIL 2018-C14 Commercial Mortgage Trust)
