CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01: (i) The Trustee 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 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) The Trustee shall be under no 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 reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not 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 to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 25% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action; (vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, provided that the use of any such agent or attorney-in-fact shall not relieve the Trustee from any of its obligations hereunder, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-fact; (vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and (viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator, as the case may be) or for any act or omission of the Sponsor or the Mortgage Loan Seller.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The Trustee or the Fiscal Agent 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, 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 Trustee or the Fiscal Agent may consult with counsel and the written advice of such counsel or and 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) The Neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it the Trustee or the Fiscal Agent in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior The Trustee and the Fiscal Agent (in their respective capacities as such) shall be under no obligation to exercise any of the occurrence of an Event of Default hereunderpowers vested in it by this Agreement or to institute, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound to conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Fiscal Agent 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, Trustee or the Fiscal Agent not reasonably assured to the Trustee or the Fiscal Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Fiscal Agent may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The Trustee's and the Fiscal Agent's reasonable expenses shall be paid by the Certificateholders making such actionrequest;
(viv) The Trustee and the Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee or the Fiscal Agent conferred on them by such appointment; provided that the use of any such agent or attorney-in-fact Trustee shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer or the Depositor;
(vi) The Trustee from any of its obligations hereunder, and the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factin no event be required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under this Agreement, Neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice expend its own funds or otherwise incur any financial liability in the performance of any Event of Default its duties hereunder (unless a Responsible Officer otherwise expressly required herein to do so) if it shall have reasonable grounds for believing that repayment of the Trustee has actual knowledge thereof such funds or unless written notice of any event which adequate indemnity against such liability is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; andnot assured to it;
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible liable for any act loss on any investment of funds pursuant to this Agreement; provided, however, that this provision shall not operate to forgive the Trustee or omission Fiscal Agent, in their respective individual capacities, for a liability that either of the Master Servicerthem may have for any investment loss and incurred on such investment; and
(ix) unless otherwise specifically required by law, the Special Servicer Trustee and the Fiscal Agent shall not be required to post any surety or bond of any kind in connection with the REMIC Administrator 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 is acting shall have received a 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 the 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, its assets, any REMIC Pool or transactions including, without limitation, (A) "prohibited transaction" taxes as Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Com Mort Ps THR Cer Se 1998-Cf1), Pooling and Servicing Agreement (Morgan Stanley Capital I Inc), Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee and the Fiscal Agent 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, 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 the Trustee and the Fiscal Agent each may consult with counsel and the written advice of such counsel or and 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) The neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it such Person in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound under any obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedAggregate Certificate Balance of the Certificates then outstanding provided that, however, that if the payment within a reasonable time to the Trustee 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, such Person not reasonably assured to the Trustee such Person by the security afforded to it by the terms of this Agreement, the Trustee such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The reasonable expenses of the Trustee shall be paid by the Certificateholders requesting such actionexamination;
(viv) The the Trustee and the Fiscal Agent each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee and the Fiscal Agent conferred on them by such appointment; provided that each of the use of any such agent or attorney-in-fact Trustee and the Fiscal Agent, as the case may be, shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer, the Depositor or the actions or omissions of each other;
(vi) neither the Trustee from any of its obligations hereunder, and nor the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factbe required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under neither the Trustee nor the Fiscal Agent 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;
(viii) neither the Trustee nor the Fiscal Agent shall be liable for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice post any surety or bond of any Event kind in connection with the execution or performance of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreementits duties hereunder; and
(viiix) Neither except as specifically provided hereunder in connection with the performance of its specific duties, neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer Servicer, the Depositor or of each other.
(b) Following the REMIC Administrator (Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee is acting shall have received a 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 Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Depositor for Ser 1999-Life1)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee and the Fiscal Agent 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, 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 the Trustee and the Fiscal Agent each may consult with counsel and the written advice of such counsel or and 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) The neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it such Person in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound under any obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedAggregate Certificate Balance of the Certificates then outstanding provided that, however, that if the payment within a reasonable time to the Trustee Trustee, 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, such Person not reasonably assured to the Trustee such Person by the security afforded to it by the terms of this Agreement, the Trustee such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The reasonable expenses of the Trustee shall be paid by the Certificateholders requesting such actionexamination;
(viv) The the Trustee and the Fiscal Agent each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee and the Fiscal Agent conferred on them by such appointment; provided that each of the use of any such agent or attorney-in-fact Trustee and the Fiscal Agent, as the case may be, shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer, the Depositor or the actions or omissions of each other;
(vi) neither the Trustee from any of its obligations hereunder, and nor the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factbe required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under neither the Trustee nor the Fiscal Agent 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;
(viii) neither the Trustee nor the Fiscal Agent shall be liable for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice post any surety or bond of any Event kind in connection with the execution or performance of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreementits duties hereunder; and
(viiix) Neither except as specifically provided hereunder in connection with the performance of its specific duties, neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer Servicer, the Depositor or of each other.
(b) Following the REMIC Administrator (Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee is acting shall have received a 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 Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The Trustee or the Fiscal Agent 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, 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 Trustee or the Fiscal Agent may consult with counsel and the written advice of such counsel or and 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) The Neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it the Trustee or the Fiscal Agent in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior The Trustee and the Fiscal Agent (in their respective capacities as such) shall be under no obligation to exercise any of the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound powers vested in it by this Agreement or to institute conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Fiscal Agent 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, Trustee or the Fiscal Agent not reasonably assured to the Trustee or the Fiscal Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Fiscal Agent may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The Trustee's and the Fiscal Agent's reasonable expenses shall be paid by the Certificateholders requesting such actionexamination;
(viv) The Trustee and the Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee or the Fiscal Agent conferred on them by such appointment; provided that the use of any such agent or attorney-in-fact Trustee shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer or the Depositor;
(vi) The Trustee from any of its obligations hereunder, and the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factin no event be required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under this Agreement, Neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice expend its own funds or otherwise incur any financial liability in the performance of any Event of Default its duties hereunder (unless a Responsible Officer otherwise expressly required herein to do so) if it shall have reasonable grounds for believing that repayment of the Trustee has actual knowledge thereof such funds or unless written notice of any event which adequate indemnity against such liability is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; andnot assured to it;
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible liable for any act loss on any investment of funds pursuant to this Agreement; provided, however, that this provision shall not operate to forgive the Trustee or omission Fiscal Agent, in their respective individual capacities, for a liability that either of the Master Servicerthem may have for any investment loss incurred on such investment; and
(ix) unless otherwise specifically required by law, the Special Servicer Trustee and the Fiscal Agent shall not be required to post any surety or bond of any kind in connection with the REMIC Administrator 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 is acting shall have received a 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 the 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 Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The Trustee or the Fiscal Agent 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, 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 Trustee or the Fiscal Agent may consult with counsel and the written advice of such counsel or and 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) The Neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it the Trustee or the Fiscal Agent in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior The Trustee and the Fiscal Agent (in their respective capacities as such) shall be under no obligation to exercise any of the occurrence of an Event of Default hereunderpowers vested in it by this Agreement or to institute, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound to conduct or defend any litigation hereunder or relating hereto or 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 101 in writing to do so by Holders of Certificates entitled to at least 25% of the Voting Rights; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Fiscal Agent 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, Trustee not reasonably assured to the Trustee or the Fiscal Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Fiscal Agent may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The Trustee's and the Fiscal Agent's reasonable expenses shall be paid by the Certificateholders making such actionrequest;
(viv) The Trustee and the Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee or the Fiscal Agent conferred on them by such appointment; provided that the use of any such agent or attorney-in-fact Trustee shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer or the Depositor;
(vi) The Trustee from any of its obligations hereunder, and the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factin no event be required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under this Agreement, Neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice expend its own funds or otherwise incur any financial liability in the performance of any Event of Default its duties hereunder (unless a Responsible Officer otherwise expressly required herein to do so) if it shall have reasonable grounds for believing that repayment of the Trustee has actual knowledge thereof such funds or unless written notice of any event which adequate indemnity against such liability is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; andnot assured to it;
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible liable for any act loss on any investment of funds pursuant to this Agreement; provided, however, that this provision shall not operate to forgive the Trustee or omission the Fiscal Agent, in their respective individual capacities, for a liability that either of the Master Servicerthem may have for any investment loss and incurred on such investment; and
(ix) unless otherwise specifically required by law, the Special Servicer Trustee and the Fiscal Agent shall not be required to post any surety or bond of any kind in connection with the REMIC Administrator 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 is acting shall have received a 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 the proceeding relating thereto, and any such 102 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, its assets, any REMIC Pool or transactions including, without limitation, (A) "prohibited transaction" taxes as Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Heller Financial Commercial Mort Asset Corp Series 1999 Ph 2)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee and the Fiscal Agent 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, 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 the Trustee and the Fiscal Agent each may consult with counsel and the written advice of such counsel or and 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) The neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it such Person in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound under any obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedAggregate Certificate Balance of the Certificates then outstanding provided that, however, that if the payment within a reasonable time to the Trustee Trustee, 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, such Person not reasonably assured to the Trustee such Person by the security afforded to it by the terms of this Agreement, the Trustee such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The reasonable expenses of the Trustee shall be paid by the Certificateholders requesting such actionexamination;
(viv) The the Trustee and the Fiscal Agent each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee and the Fiscal Agent conferred on them by such appointment; provided that each of the use of any such agent or attorney-in-fact Trustee and the Fiscal Agent, as the case may be, shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer, the Depositor or the actions or omissions of each other;
(vi) neither the Trustee from any of its obligations hereunder, and nor the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factbe required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under neither the Trustee nor the Fiscal Agent 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;
(viii) neither the Trustee nor the Fiscal Agent shall be liable for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice post any surety or bond of any Event kind in connection with the execution or performance of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreementits duties hereunder; and
(viiix) Neither except as specifically provided hereunder in connection with the performance of its specific duties, neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer Servicer, the Depositor or of each other.
(b) Following the REMIC Administrator (Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee is acting shall have received a 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 Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital 1 Inc Series 2000-Prin)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Fiscal Agent 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 172 believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Fiscal Agent 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 therewiththerewith and the expense of such consultation with counsel shall be reimbursable under Section 8.05(b) hereof;
(iii) The Neither the Trustee nor the Fiscal Agent (in their respective capacities as such) shall be under no 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 Fiscal Agent, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Fiscal Agent shall not 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 an Event of Default hereunder which has not been cured, to exercise such of the rights and powers vested in it by this Agreement 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) The Neither the Trustee nor the Fiscal Agent shall not 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 to the occurrence of an Event of Default hereunder, hereunder and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 2550% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-factagents, provided that the use of any such agent or attorney-in-fact 173 Trustee shall not relieve the Trustee be relieved from any of its obligations hereundersuch duties, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-factagent;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, Servicer or the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administratorthe Special Servicer, as the case may be) or for any act or omission of the Sponsor Depositor or the Mortgage Loan Sellerany other person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Fiscal Agent 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 Fiscal Agent 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 therewiththerewith and the expense of such consultation with counsel shall be reimbursable under Section 8.05(b) hereof;
(iii) The Neither the Trustee nor the Fiscal Agent (in their respective capacities as such) shall be under no 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 Fiscal Agent, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Fiscal Agent shall not 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 an Event of Default hereunder which has not been cured, to exercise such of the rights and powers vested in it by this Agreement 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) The Neither the Trustee nor the Fiscal Agent shall not 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 to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 25% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, provided that the use of any such agent or attorney-in-fact shall not relieve the Trustee from any of its obligations hereunder, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator, as the case may be) or for any act or omission of the Sponsor or the Mortgage Loan Seller.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The Trustee or the Fiscal Agent 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, 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;; 92
(ii) The Trustee or the Fiscal Agent may consult with counsel and the written advice of such counsel or and 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) The Neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it the Trustee or the Fiscal Agent in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior The Trustee and the Fiscal Agent (in their respective capacities as such) shall be under no obligation to exercise any of the occurrence of an Event of Default hereunderpowers vested in it by this Agreement or to institute, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound to conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedprovided that, however, that if the payment within a reasonable time to the Trustee or the Fiscal Agent 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, Trustee or the Fiscal Agent not reasonably assured to the Trustee or the Fiscal Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Fiscal Agent may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The Trustee's and the Fiscal Agent's reasonable expenses shall be paid by the Certificateholders making such actionrequest;
(viv) The Trustee and the Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee or the Fiscal Agent conferred on them by such appointment; provided that the use of any such agent or attorney-in-fact Trustee shall continue to be responsible for its duties and obligations hereunder and shall not relieve be liable for the actions or omissions of the Master Servicer, the Special Servicer or the Depositor;
(vi) The Trustee from any of its obligations hereunder, and the Trustee Fiscal Agent shall remain responsible for all acts and omissions of any such agent or attorney-in-factin no event be required to obtain a deficiency judgment against a Mortgagor;
(vii) For all purposes under this Agreement, Neither the Trustee nor the Fiscal Agent shall not be deemed required to have notice expend its own funds or otherwise incur any financial liability in the performance of any Event of Default its duties hereunder (unless a Responsible Officer otherwise expressly required herein to do so) if it shall have reasonable grounds for believing that repayment of the Trustee has actual knowledge thereof such funds or unless written notice of any event which adequate indemnity against such liability is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; andnot assured to it;
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible liable for any act loss on any investment of funds pursuant to this Agreement; provided, however, that this provision shall not operate to forgive the Trustee or omission Fiscal Agent, in their respective individual capacities, for a liability that either of the Master Servicerthem may have for any investment loss and incurred on such investment; and
(ix) unless otherwise specifically required by law, the Special Servicer Trustee and the Fiscal Agent shall not be required to post any surety or bond of any kind in connection with the REMIC Administrator 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 is acting shall have received a 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 the 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, its assets, any REMIC Pool or transactions including, without limitation, (A) "prohibited transaction" taxes as Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(ia) The Trustee and the Fiscal Agent 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;
(iib) The Trustee and the Fiscal Agent 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 therewiththerewith and the expense of such consultation with counsel shall be reimbursable under Section 8.05(b) hereof;
(iiic) The Neither the Trustee nor the Fiscal Agent (in their respective capacities as such) shall be under no 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 Fiscal Agent, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Fiscal Agent shall not 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 an Event of Default hereunder which has not been cured, to exercise such of the rights and powers vested in it by this Agreement 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;
(ivd) The Neither the Trustee nor the Fiscal Agent shall not 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 to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 25% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, provided that the use of any such agent or attorney-in-fact shall not relieve the Trustee from any of its obligations hereunder, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator, as the case may be) or for any act or omission of the Sponsor or the Mortgage Loan Seller.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities Inc. Series 2004-C2)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. (a) Except as otherwise provided in Section 8.017.1:
(i) The the Trustee or the Fiscal Agent 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, 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 the Trustee or the Fiscal Agent may consult with counsel and the written advice of such counsel or and 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) The neither the Trustee shall be under no obligation to exercise nor the Fiscal Agent nor any of the trusts their respective directors, officers, employees, agents 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 Controlling Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not be personally liable for any action reasonably taken, suffered or omitted by it the Trustee or the Fiscal Agent in good faith its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(viv) Prior to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee shall not be bound under no obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or 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 at least 25% of the Voting Rights; providedAggregate Principal Amount of the Certificates then outstanding provided that, however, that if the payment within a reasonable time to the Trustee 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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to taking any proceeding. The Trustee's reasonable expenses shall be paid by the Certificateholders requesting such actionexamination;
(viv) The the Trustee and the Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, provided that which agents or attorneys shall have any or all of the use of any such agent or attorney-in-fact shall not relieve the Trustee from any of its rights, powers, duties and obligations hereunder, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice the Fiscal Agent conferred on them by such appointment; provided that each of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall continue to be 95 103 responsible for any act its duties and obligations hereunder and shall not be liable for the actions or omission omissions of the Master Servicer, the Special Servicer or the REMIC Administrator Depositor;
(vi) the Trustee and the Fiscal Agent shall in no event be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent 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 assumed to it;
(viii) neither the Trustee nor the Fiscal Agent shall be liable for any loss on any investment of funds pursuant to this Agreement; provided, however, that this provision shall not operate to forgive the Trustee or Fiscal Agent, in their respective individual capacities, for a liability that either of them may have for any investment loss incurred on such investment; and
(ix) unless otherwise specifically required by law, the Trustee and the Fiscal Agent shall not be required to post any surety or bond of any 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 is acting shall have received a 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 Master Servicerdefined in Section 860F of the Code, Special Servicer or REMIC Administratorif, when and as the case may besame shall be due and payable, (B) or for any act or omission tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Sponsor Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Mortgage Loan SellerTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Fiscal Agent 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 Fiscal Agent 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 therewiththerewith and the expense of such consultation with counsel shall be reimbursable under Section 8.05(b) hereof;
(iii) The Neither the Trustee nor the Fiscal Agent (in their respective capacities as such) shall be under no 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 Fiscal Agent, as applicable reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Fiscal Agent shall not 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 an Event of Default hereunder which has not been cured, to exercise such of the rights and powers vested in it by this Agreement 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) The Neither the Trustee nor the Fiscal Agent shall not 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 to the occurrence of an Event of Default hereunder, hereunder and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 2550% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-factagents, provided that the use of any such agent or attorney-in-fact Trustee shall not relieve the Trustee be relieved from any of its obligations hereundersuch duties, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-factagent;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, Servicer or the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administratorthe Special Servicer, as the case may be) or for any act or omission of the Sponsor Depositor or the Mortgage Loan Sellerany other person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(ia) The Trustee and the Fiscal Agent 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;
(iib) The Trustee and the Fiscal Agent 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 therewiththerewith and the expense of such consultation with counsel shall be reimbursable under Section 8.05(b) hereof;
(iiic) The Neither the Trustee nor the Fiscal Agent (in their respective capacities as such) shall be under no 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 Fiscal Agent, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Fiscal Agent shall not 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 an Event of Default hereunder which has not been cured, to exercise such of the rights and powers vested in it by this Agreement 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;
(ivd) The Neither the Trustee nor the Fiscal Agent shall not 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;
(ve) Prior to the occurrence of an Event of Default hereunder, hereunder and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 2550% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-factagents, provided provided, that the use of any such agent or attorney-in-fact Trustee shall not relieve the Trustee be relieved from any of its obligations hereundersuch duties, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-factagent;
(viig) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viiih) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, Servicer or the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administratorthe Special Servicer, as the case may be) or for any act or omission of the Sponsor Depositor or the Mortgage Loan Sellerany other person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Fiscal Agent 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 pre sented by the proper party or parties;
(ii) The Trustee and the Fiscal Agent 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) The Neither the Trustee nor the Fiscal Agent (in their respective capacities as such) shall be under no 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 Fiscal Agent, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Fiscal Agent shall not 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 an Event of Default hereunder which has not been cured, to exercise such of the rights and powers vested in it by this Agreement 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) The Neither the Trustee nor the Fiscal Agent shall not 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 to the occurrence of an Event of Default hereunder, hereunder and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 2550% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-factagents, provided that the use of any such agent or attorney-in-fact Trustee shall not relieve the Trustee be relieved from any of its obligations hereundersuch duties, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-factagent;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, Servicer or the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administratorthe Special Servicer, as the case may be) or for any act or omission of the Sponsor Depositor or the Mortgage Loan Sellerany other person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL AGENT. Except as otherwise provided in Section 8.01:
(i) The Trustee 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 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) The Trustee shall be under no 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 reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the Trustee shall not 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 an Event of Default hereunder 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) The Trustee shall not 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 to the occurrence of an Event of Default hereunder, and after the curing of all such Events of Default which may have occurred, the Trustee 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 to do so by Holders of Certificates entitled to at least 25% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys-in-fact, provided that the use of any such agent or attorney-in-fact shall not relieve the Trustee from any of its obligations hereunder, and the Trustee shall remain responsible for all acts and omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall not be deemed to have notice of any Event of Default hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Certificates or this Agreement; and
(viii) Neither the Trustee nor the Fiscal Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer or the REMIC Administrator (unless the Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator, as the case may be) or for any act or omission of the Sponsor or the Mortgage Loan SellerSellers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
