Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01: (i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 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 with such advice or Opinion of Counsel; (iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs; (iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement; (v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation; (vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and (vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions. (b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 16 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Gmacm Mortgage Pass Thru Certs Series 2003-J8)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01 hereof:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Further, the Trustee may accept a copy of the vote of the Board of Directors of any party certified by its clerk or assistant clerk or secretary or assistant secretary as conclusive evidence of the authority of any person to act in accordance with such vote, and such vote may be considered as in full force and effect until receipt by the Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its part, rely upon a certificate of an Officer of the appropriate Person whenever in the administration of the Trust Agreement the Trustee shall deem it desirable that a matter be proved or established (unless other evidence be herein specifically prescribed) prior to taking, suffering or omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such written advice or Opinion of Counsel;
(iiiiv) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this the Trust Agreement or to institute, conduct or defend any litigation hereunder thereunder or in relation hereto thereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this the Trust 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this the Trust Agreement;
(vvi) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this the Trust Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vivii) The Trustee may execute any of the trusts or powers hereunder under the Trust Agreement or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under the Trust Agreement, provided that any agent appointed by the Trustee hereunder shall be entitled to all of the protections of the Trustee under this Agreement including, without limitation, the indemnification provided for under Section 8.05 hereof;
(viii) Whenever the Trustee is authorized herein to require acts or documents in addition to those required to be provided it in any matter, it shall be under no obligation to make any determination whether or not such additional acts or documents should be required unless obligated to do so under Section 9.01;
(ix) The permissive right or authority of the Trustee to take any action enumerated in this Agreement shall not be construed as a duty or obligation;
(x) The Trustee shall not be deemed to have notice of any matter, including without limitation any Event of Default, unless one of its Responsible Officers has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Office and such notice references the applicable Certificates generally, the applicable Servicer or Seller, the Trust or this Agreement;
(xi) The Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers (except with respect to its obligation to make Monthly Advances pursuant hereto) if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of any Servicer or the Master Servicer under this Agreement except with respect to the Trustee’s obligation to make Monthly Advances pursuant hereto or as successor servicer under any Servicing Agreement or any successor master servicer under this Agreement and during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, any Servicer or the Master Servicer in accordance with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and without limiting the generality of this Section 9.02, the Trustee shall not have any duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see the maintenance of any such recording of filing or depositing or to any rerecording, refiling or redepositing any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate other than from funds available in the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of any Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder; and
(viixiv) To Anything in this Agreement to the extent authorized under the Code and the regulations promulgated thereundercontrary notwithstanding, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf lost profits), even if the Trustee has been advised of the Trust Fund. The Trustee shall sign on behalf likelihood of such loss or damage and regardless of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf form of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsaction.
(b) Following All rights of action under the issuance Trust 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost provisions of the Trustee or Trust Agreement. Any recovery of judgment shall, after provision for the Trust Fund, to the effect that such contribution will not (i) cause any portion payment of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) reasonable compensation, expenses, disbursements and advances of the Code)Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Appears in 15 contracts
Samples: Master Servicing and Trust Agreement (Gs Mortgage Securities Corp), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2006-8f), Master Servicing and Trust Agreement (GSR 2006-5f)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors, Servicing Officer, certificate of auditors Officers or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel counsel, financial advisors or accountants and the written any advice of such counsel and Persons 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which that 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less evidencing greater than 50%% of the Voting Rights allocated to each Class of Certificates; 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 so proceeding. The taking any such action; the reasonable expense of every such examination investigation shall be paid (A) by the Master Servicer or by the applicable Servicer in the event that such investigation relates to an Event of Default by the Master Servicer or by such Servicer, respectively, if an Event of Default by the Master Servicer or by such Servicer shall have occurred and is continuing, and (B) otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care;
(vii) the Trustee shall not 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) the Trustee shall not be liable for any loss on any investment of funds pursuant to this Agreement; and
(viiix) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of construed as a duty, and the Trust Fund. The Trustee shall sign on behalf not be answerable for other than its negligence or willful misconduct in the performance of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsact.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 14 contracts
Samples: Pooling and Servicing Agreement (Adjustable Rate Mortgage Trust 2006-3), Pooling and Servicing Agreement (CSFB Adjustable Rate Mortgage Trust 2005-10), Pooling and Servicing Agreement (Adjustable Rate Mortgage Trust 2007-1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely conclusively upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable it security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense expense, or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents custodians, agents nominees or attorneysattorneys and shall not be responsible for any willful misconduct or negligence of such agents, custodians, nominees or attorneys (as long as such agents, custodians, nominees or attorneys are appointed with due and proper care);
(vii) The Trustee shall not be personally liable for any loss resulting from the investment of funds held in the Collection Account at the direction of the Servicer pursuant to Section 3.12; and
(viiviii) To Except as otherwise expressly provided herein, none of the extent authorized under the Code and the regulations promulgated thereunder, each Holder provisions of a Class R Certificate hereby irrevocably appoints and authorizes this Agreement shall require the Trustee to be expend or risk its attorney-in-fact own funds or otherwise to incur any liability, financial or otherwise, 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 purposes believing that repayment of signing any Tax Returns required such funds or indemnity satisfactory to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund it against such risk or liability is not assured to it (not including expenses, disbursements and deliver to the Servicer in a timely manner any Tax Returns prepared by advances incurred or on behalf of the Servicer that the Trustee is required to sign as determined made by the Servicer pursuant to applicable federalTrustee, state or local tax lawsincluding the compensation and the expenses and disbursements of its agents and counsel, provided that in the Servicer shall indemnify ordinary course of its performance in accordance with the Trustee for signing any such Tax Returns that contain errors or omissionsprovisions of this Agreement).
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 14 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp), Pooling and Servicing Agreement (Asset Backed Sec Corp Asset Back Pass-THR Certs Ser 2004-He2), Pooling and Servicing Agreement (Asset Backed Securities Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely conclusively upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable it security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense expense, or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents custodians, agents nominees or attorneysattorneys and shall not be responsible for any willful misconduct or negligence of such agents, custodians, nominees or attorneys (as long as such agents, custodians, nominees or attorneys are appointed with due and proper care);
(vii) The Trustee shall not be personally liable for any loss resulting from the investment of funds held in the Collection Account at the direction of the Servicer pursuant to Section 3.12; and
(viiviii) To Except as otherwise expressly provided herein, none of the extent authorized under the Code and the regulations promulgated thereunder, each Holder provisions of a Class R Certificate hereby irrevocably appoints and authorizes this Agreement shall require the Trustee to be expend or risk its attorney-in-fact own funds or otherwise to incur any liability, financial or otherwise, 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 purposes believing that repayment of signing any Tax Returns required such funds or indemnity satisfactory to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund it against such risk or liability is not assured to it (not including expenses, disbursements and deliver to the Servicer in a timely manner any Tax Returns prepared by advances incurred or on behalf of the Servicer that the Trustee is required to sign as determined made by the Servicer pursuant to applicable federalTrustee, state or local tax lawsincluding the compensation and the expenses and disbursements of its agents and counsel, provided that in the Servicer shall indemnify ordinary course of its performance in accordance with the Trustee for signing any such Tax Returns that contain errors or omissionsprovisions of this Agreement).
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 13 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series AMQ 2007-He2), Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series 2006-He7), Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series OOMC 2006-He3)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely conclusively upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable it security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense expense, or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents custodians, agents nominees or attorneysattorneys and shall not be responsible for any willful misconduct or negligence of such agents, custodians, nominees or attorneys (as long as such agents, custodians, nominees or attorneys are appointed with due and proper care);
(vii) The Trustee shall not be personally liable for any loss resulting from the investment of funds held in the Collection Account at the direction of the Servicer pursuant to Section 3.12; and
(viiviii) To Except as otherwise expressly provided herein, none of the extent authorized under the Code and the regulations promulgated thereunder, each Holder provisions of a Class R Certificate hereby irrevocably appoints and authorizes this Agreement shall require the Trustee to be expend or risk its attorney-in-fact own funds or otherwise to incur any liability, financial or otherwise, 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 purposes believing that repayment of signing any Tax Returns required such funds or indemnity satisfactory to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund it against such risk or liability is not assured to it (not including expenses, disbursements and deliver to the Servicer in a timely manner any Tax Returns prepared by advances incurred or on behalf of the Servicer that the Trustee is required to sign as determined made by the Servicer pursuant to applicable federalTrustee, state or local tax lawsincluding the compensation and the expenses and disbursements of its agents and counsel, provided that in the Servicer shall indemnify ordinary course of its performance in accordance with the Trustee for signing any such Tax Returns that contain errors or omissionsprovisions of this Agreement.)
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 10 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass Through Certificates Series 2003-He6), Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equ Loan Tr Ser 2003-He1), Pooling and Servicing Agreement (Home Equity Loan Trust Series 2003-He2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01 hereof:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Further, the Trustee may accept a copy of the vote of the board of directors of any party certified by its clerk or assistant clerk or secretary or assistant secretary as conclusive evidence of the authority of any person to act in accordance with such vote, and such vote may be considered as in full force and effect until receipt by the Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its part, rely upon a certificate of an Officer of the appropriate Person whenever in the administration of the Trust Agreement the Trustee shall deem it desirable that a matter be proved or established (unless other evidence be herein specifically prescribed) prior to taking, suffering or omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such written advice or Opinion of Counsel;
(iiiiv) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this the Trust Agreement or to institute, conduct or defend any litigation hereunder thereunder or in relation hereto thereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this the Trust 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it in good faith to be authorized or within the discretion or rights or powers conferred upon it by this the Trust Agreement;
(vvi) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this the Trust Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vivii) The Trustee may execute any of the trusts or powers hereunder under the Trust Agreement or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under the Trust Agreement, provided that any agent appointed by the Trustee hereunder shall be entitled to all of the protections of the Trustee under this Agreement including, without limitation, the indemnification provided for under Section 9.05 hereof;
(viii) Whenever the Trustee is authorized herein to require acts or documents in addition to those required to be provided it in any matter, it shall be under no obligation to make any determination whether or not such additional acts or documents should be required unless obligated to do so under Section 9.01;
(ix) The permissive right or authority of the Trustee to take any action enumerated in this Agreement shall not be construed as a duty or obligation;
(x) The Trustee shall not be deemed to have notice of any matter, including without limitation any Event of Default, unless one of its Responsible Officers has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Office and such notice references the applicable Certificates generally, the applicable Servicer or Seller, the Trust or this Agreement;
(xi) The Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers (except with respect to its obligation to make Monthly Advances pursuant hereto) if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of any Servicer or the Master Servicer under this Agreement except with respect to the Trustee’s obligation to make Monthly Advances as successor servicer under any Servicing Agreement or any successor master servicer under this Agreement and during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, any Servicer or the Master Servicer in accordance with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and without limiting the generality of this Section 9.02, the Trustee shall not have any duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see the maintenance of any such recording of filing or depositing or to any rerecording, refiling or redepositing any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate other than from funds available in the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of any Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder; and
(viixiv) To Anything in this Agreement to the extent authorized under the Code and the regulations promulgated thereundercontrary notwithstanding, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf lost profits), even if the Trustee has been advised of the Trust Fund. The Trustee shall sign on behalf likelihood of such loss or damage and regardless of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf form of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsaction.
(b) Following All rights of action under the issuance Trust 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost provisions of the Trustee or Trust Agreement. Any recovery of judgment shall, after provision for the Trust Fund, to the effect that such contribution will not (i) cause any portion payment of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) reasonable compensation, expenses, disbursements and advances of the Code)Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Appears in 7 contracts
Samples: Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2005-Ar3), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2005-Ar2), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2004-14)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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, and the manner of obtaining consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Trustee may prescribe;
(ii) The the Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the CertificateholdersCertificateholders or the NIMS Insurer, pursuant to the provisions of this Agreement, unless such Certificateholders or the NIMS Insurer, as applicable shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the right of the Trustee of the obligation, upon the occurrence of an Event of Default (which has to perform any discretionary act enumerated in this Agreement shall not been cured or waived), to exercise such of the rights and powers vested in it by this Agreementbe construed as a duty, and to use the same degree of care and skill in their exercise as a prudent investor would exercise Trustee shall not be answerable for other than its negligence or use under the circumstances willful misconduct in the conduct performance of any such investor's own affairsact;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an a Servicer Event of Default hereunder Termination and after the curing or waiver of all Servicer Events of Default Termination 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 documentdocuments, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the NIMS Insurer or the Majority Certificateholder; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or the NIMS Insurer (if requested by the NIMS Insurer) or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationServicer or the NIMS Insurer (if requested by the NIMS Insurer) upon demand and, if not reimbursed by the Servicer or the NIMS Insurer (if requested by the NIMS Insurer), shall be reimbursed by the Trust. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may be required to act as Servicer pursuant to Section 7.02 and thereupon only for the acts or omissions of the Trustee as successor Servicer;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys, custodians or nominees;
(viii) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(ix) the Trustee shall not be personally liable for any loss resulting from the investment of funds held in the Collection Account or the REO Account made at the direction of the Servicer pursuant to Section 3.12; and
(viix) To the extent authorized Trustee or its Affiliates are permitted to receive compensation that could be deemed to be in the Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments, (ii) using Affiliates to effect transactions in certain Permitted Investments and (iii) effecting transactions in certain Permitted Investments. Such compensation shall not be considered an amount that is reimbursable or payable pursuant to Section 3.11. In order to comply with its duties under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesU.S. Patriot Act, the Trustee shall obtain and verify certain information and documentation from the other parties hereto, including, but not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsellimited to, which shall not be a cost of the Trustee or the Trust Fundsuch parties’ name, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)address and other identifying information.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt1), Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Opt4), Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Opt2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.018.01 hereof:
(i) The the Trustee may request and conclusively rely upon, and shall be fully protected in acting or refraining from acting upon upon, any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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, and the manner of obtaining consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Trustee may prescribe;
(ii) The the Trustee may consult with counsel and the written any advice of such its counsel and 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall not be under no any obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the right of the Trustee of the obligation, upon the occurrence of an Event of Default (which has to perform any discretionary act enumerated in this Agreement shall not been cured or waived), to exercise such of the rights and powers vested in it by this Agreementbe construed as a duty, and to use the same degree of care and skill in their exercise as a prudent investor would exercise Trustee shall not be answerable for other than its negligence or use under the circumstances willful misconduct in the conduct performance of any such investor's own affairsact;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 documentdocuments, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Certificateholder; 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, 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;.
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may be required to act as the Servicer pursuant to Section 7.02 hereof and thereupon only for the acts or omissions of the Trustee as a successor Servicer;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents nominees, attorneys or attorneysa custodian, and shall not be responsible for any willful misconduct or negligence on the part of any agent, nominee, attorney or custodian appointed by the Trustee in good faith; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 6 contracts
Samples: Pooling Agreement (HarborView Mortgage Loan Trust 2005-10), Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc), Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2005-2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the any written advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)cured) of which a Responsible Officer has knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 documentdocuments, unless requested in writing so to do so by the Holders of Certificates of any Class evidencing, as to such Class, evidencing Percentage Interests, Interests aggregating not less than 5051%; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationServicer upon demand. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may act as Servicer pursuant to Section 8.02;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Tr 99-3 Home Eq as Bk Se 99-3), Pooling and Servicing Agreement (Delta Funding Home Equity Loan Tr 1999-2 Home Equ Loan Ass B), Pooling and Servicing Agreement (Delta Fund Hm Equ Ln 2000-2 Hm Equ Ln Ass BKD CRT Ser 2000-2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(ia) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel selected by it with due care and the written any advice of obtained from such counsel and any or 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 with such advice or Opinion of Counsel;
(iiic) The Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders the Person so requesting, ordering or directing same shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which that may be incurred therein or thereby; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default known to a Responsible Officer of the Trustee (which has not been cured or waivedcured), to exercise such of the rights and powers vested in it by this Agreement, subject to the provisions of Section 9.13, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized in accordance with the direction of the Holders of Certificates evidencing Voting Interests representing all Certificates (or within the discretion or rights or powers conferred upon it by this Agreementall affected Certificates, as appropriate) aggregating not less than 51%;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which that 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 documentdocuments, unless requested in writing so to do so by the Holders of Certificates of any Class evidencingevidencing Voting Interests represented by all Certificates (or all affected Certificates, as to such Class, Percentage Interests, appropriate) aggregating not less than 5051%; 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 cost, expense or liability as a condition to so such proceeding. The ; the reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Servicer upon demand; and nothing in this clause (e) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors; and
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of attorneys or a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fundcustodian. The Trustee shall sign on behalf not be liable or responsible for the misconduct of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared agent, attorney or custodian appointed with due care by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionshereunder.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Aames Capital Corp Mort Pass THR Certs Ser 2001 3), Pooling and Servicing Agreement (Aames Capital Corp Aames Mortgage Trust 2002-1), Pooling and Servicing Agreement (Aames Capital Corp Mort Pass THR Certs Ser 2001 3)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.018.01 hereof:
(i) The the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Further, the Trustee may accept a copy of the vote of the Board of Directors of any party certified by its clerk or assistant clerk or secretary or assistant secretary as conclusive evidence of the authority of any person to act in accordance with such vote, and such vote may be considered as in full force and effect until receipt by the Trustee of written notice to the contrary;
(ii) The the Trustee may, in the absence of bad faith on its part, rely upon a certificate of an Officer of the appropriate Person whenever in the administration of the Trust Agreement the Trustee shall deem it desirable that a matter be proved or established (unless other evidence be herein specifically prescribed) prior to taking, suffering or omitting any action hereunder;
(iii) the Trustee may consult with counsel chosen with due care and the written advice of such counsel and 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 with such written advice or Opinion of Counsel;
(iiiiv) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this the Trust Agreement or to institute, conduct or defend any litigation hereunder thereunder or in relation hereto thereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this the Trust 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this the Trust Agreement;
(vvi) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 the Trust Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination investigation shall be paid by the ServicerMaster Servicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be repaid by the investigationMaster Servicer upon demand;
(vivii) The the Trustee may execute any of the trusts or powers hereunder under the Trust Agreement or perform any duties hereunder thereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under the Trust Agreement;
(viii) whenever the Trustee is authorized herein to require acts or documents in addition to those required to be provided it in any matter, it shall be under no obligation to make any determination whether or not such additional acts or documents should be required unless obligated to do so under Section 8.01 hereof;
(ix) the permissive right or authority of the Trustee to take any action enumerated in the Trust Agreement shall not be construed as a duty or obligation; and
(viix) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee shall not be deemed to be its attorney-in-fact for purposes have notice of signing any Tax Returns required to be filed on behalf matter, including, but limited to, any Event of Default, unless an Officer of the Trustee has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Fund. The Trustee shall sign on behalf of Office and such notice references the Certificates, the Trust Fund and deliver to or the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsTrust Agreement.
(b) Following All rights of action under the issuance Trust Agreement or under any of the Certificates that are enforceable by the Trustee may be enforced by the Trustee without the possession of any of the Certificates, or the production thereof at any trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost provisions of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Agreement.
Appears in 6 contracts
Samples: Trust Agreement (Saxon Asset Securities Co), Trust Agreement (Saxon Asset Securities Co), Trust Agreement (Saxon Asset Securities Co)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, 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 may consult with counsel and the any written advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)cured) of which a Responsible Officer has knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 documentdocuments, unless requested in writing so to do so by the Holders of Certificates of any Class evidencing, as to such Class, evidencing Percentage Interests, Interests aggregating not less than 5051%; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerSeller or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationSeller upon demand. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may act as Servicer pursuant to Section 8.02;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets be answerable for other than its negligence or willful misconduct in the performance or failure to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result perform of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Renaissance Mort Acc Corp Renaissance Home Eq Ln Tr 2004 1), Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3), Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 counsel, 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 with such advice or Opinion of Counsel;
(iii) The Trustee Trustee, or the Supplemental Interest Trust Trustee, as applicable, shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waivedcured), 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 investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Master Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys provided that the Trustee shall remain liable for any acts of such agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Master Servicer in a timely manner any Tax Returns prepared by or on behalf of the Master Servicer that the Trustee is required to sign as determined by the Master Servicer pursuant to applicable federal, state or local tax laws, provided that the Master Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesCertificates (and except as provided for in Section 2.04), the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, Counsel to the effect that such contribution will not (i) cause any portion of the applicable REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (RASC Series 2007-Ks2 Trust), Pooling and Servicing Agreement (RASC Series 2007-Ks3 Trust), Pooling and Servicing Agreement (RASC Series 2007-Ks1 Trust)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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, and the manner of obtaining consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Trustee may prescribe;
(ii) The the Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the right of the Trustee of the obligation, upon the occurrence of an Event of Default (which has to perform any discretionary act enumerated in this Agreement shall not been cured or waived), to exercise such of the rights and powers vested in it by this Agreementbe construed as a duty, and to use the same degree of care and skill in their exercise as a prudent investor would exercise Trustee shall not be answerable for other than its negligence or use under the circumstances willful misconduct in the conduct performance of any such investor's own affairsact;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an a Servicer Event of Default hereunder Termination and after the curing or waiver of all Servicer Events of Default Termination 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 documentdocuments, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Certificateholder; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Trustee, shall be reimbursed by the Servicer upon demand and, if not reimbursed by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise be reimbursed by the Certificateholder requesting Trust. Nothing in this clause (v) shall derogate from the investigationobligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may be required to act as Servicer pursuant to Section 7.02 and thereupon only for the acts or omissions of the Trustee as successor Servicer;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp First Franklin Mort Ln Tr 03 Ff1), Pooling and Servicing Agreement (Financial Assets Sec Corp First Franklin Mort Ln Tr 2002 Ffa), Pooling and Servicing Agreement (Financial Asset Sec Corp First Frank Mort Ln Tr 2002-Ff2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, consent, order, appraisal, approval, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel and the written advice of such counsel its choice 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of a Servicer Default (which has not been cured or waived), ) to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his or her own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, approval, bond or other paper or documentdocument believed by it to be genuine, unless requested in writing so to do by Holders of Investor Certificates evidencing more than 25% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such matters that do not relate to all Series, 25% of the aggregate unpaid principal amount of the Investor Certificates of any Class evidencing, as all Series to which such Class, Percentage Interests, aggregating not less than 50%matters relate); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses 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 reasonably satisfactory to it against such expense cost, expense, or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationproceed;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatessubsection 11.01(a), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Receivables or the Accounts for the purpose of establishing the presence or absence of defects, the compliance by the Transferors with their representations and warranties or for any other purpose;
(h) whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 10.01(f)11.02;
(i) it the Trustee shall have obtained no liability with respect to the acts or been furnished omissions of the Servicer (except and to the extent the Servicer is the Trustee), including, acts or omissions in connection with an Opinion the servicing, management or administration of CounselReceivables; calculations made by the Servicer whether or not reported to the Trustee; and deposits into or withdrawals from any accounts or funds established pursuant to the terms of this Agreement;
(j) in the event that the Trustee is also acting as Paying Agent or Transfer Agent and Registrar hereunder, which the rights and protections afforded to the Trustee pursuant to this Article XI shall also be afforded to such Paying Agent, Transfer Agent and Registrar; and
(k) the Trustee shall not be deemed to have notice of any Servicer Default unless a cost 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 Fund, to the effect that such contribution will not (i) cause any portion Office of the applicable REMIC to fail to qualify as a REMIC at any time that any Trustee, and such notice references the Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)and this Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC), Pooling and Servicing Agreement (American Express Credit Account Master Trust), Pooling and Servicing Agreement (American Express Receivables Financing Corp Iv LLC)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel and the written any advice of such counsel and any or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder under this Agreement in good faith and in accordance with such advice of counsel or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder under this Agreement or in relation hereto to this Agreement, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which that may be incurred therein or thereby; nothing contained herein in this Agreement shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default actually known to a Responsible Officer of the Trustee (which has that shall not have been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver waiving of all Events of Default which that may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%25% of the Voting Interests of a Class; 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 cost, expense or liability as a condition to so proceeding. The ; the reasonable expense of every such examination shall be paid by the ServicerSeller or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Seller upon demand; and nothing in this clause shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors; and
(vi) The the Trustee may execute any of the trusts or powers hereunder under this Agreement or perform any duties hereunder under this Agreement either directly or by or through Affiliates, agents or attorneys; and
(vii) To attorneys or a custodian and shall not be liable or responsible for the extent authorized under the Code and the regulations promulgated thereunder, each Holder misconduct or negligence of any of its agents or attorneys or a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined custodian appointed with due care by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsTrustee.
(b) Following the issuance of the CertificatesNo Certificateholder will have any right to institute any proceeding with respect to this Agreement, unless such Holder shall have given to the Trustee shall not accept any contribution written notice of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not default and (i) cause any portion the Event of Default arises from the applicable REMIC Servicer's failure to fail to qualify as a REMIC at any time that any Certificates are outstanding remit collections or payments when due or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) Holders Certificates evidencing not less than 25% of the Code)Voting Interests of a Class have made written request upon the Trustee to institute such proceeding in its own name as Trustee thereunder, and have offered to the Trustee reasonable indemnity, and the Trustee for 30 days has neglected or refused to institute any such proceedings.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Toyota Motor Credit Corp), Pooling and Servicing Agreement (Toyota Motor Credit Corp), Pooling and Servicing Agreement (Toyota Motor Credit Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(i) a. The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of a Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) b. The Trustee may consult with counsel and any opinion of any counsel for the written advice of such counsel and any Opinion of Counsel Originator, the Seller or the Servicer shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it the Trustee hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) c. The Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default Termination (which has not been cured or waivedcured), 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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) d. Prior to the occurrence of an Event of Default hereunder Termination and after the curing or waiver of all Events of Default Termination 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 so to do by Holders Certificateholders representing, in the aggregate, 25% or more of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Aggregate Certificate Principal Balance; 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 cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Servicer upon demand; and
(vi) e. The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code attorneys or a custodian and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee liable for any acts or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result omissions of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)agents, attorneys or custodians if appointed by it with due care hereunder.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp), Pooling and Servicing Agreement (Conseco Finance Securitizations Corp), Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0110.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller, certificate the Company, the Master Servicer or the related Servicer, any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred with respect to the Trustee, the Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any paying agent to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer, which consents will not be unreasonably withheld. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee’s agents or attorneys or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized under Trustee deem the Code and nature of any action required on its part to be unclear, the regulations promulgated thereunder, each Holder Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its attorney-in-fact negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder, except as provided in Subsection 10.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following The Trustee is hereby directed by the issuance of Depositor to execute and deliver the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Insurance Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-Ac5), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-Ac3), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-Ac2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's ’s Certificate, certificate of auditors, Servicing Officer, certificate of auditors Officers or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel counsel, financial advisors or accountants and the written any advice of such counsel and Persons 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which that 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less evidencing greater than 50%% of the Voting Rights allocated to each Class of Certificates; 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 so proceeding. The taking any such action; the reasonable expense of every such examination investigation shall be paid (A) by the Master Servicer or by the Servicer in the event that such investigation relates to an Event of Default by the Master Servicer or by the Servicer, respectively, if an Event of Default by the Master Servicer or by the Servicer shall have occurred and is continuing, and (B) otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care;
(vii) the Trustee shall not 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) the Trustee shall not be liable for any loss on any investment of funds pursuant to this Agreement; and
(viiix) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of construed as a duty, and the Trust Fund. The Trustee shall sign on behalf not be answerable for other than its negligence or willful misconduct in the performance of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsact.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (TBW Mortgage-Backed Trust Series 2007-2), Pooling and Servicing Agreement (TBW Mortgage-Backed Trust Series 2006-4), Pooling and Servicing Agreement (TBW 2006-1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, 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 may consult with counsel and the any written advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)cured) of which a Responsible Officer has knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 documentdocuments, unless requested in writing so to do so by the Holders of Certificates of any Class evidencing, as to such Class, evidencing Percentage Interests, Interests aggregating not less than 5051%; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerSeller or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationSeller upon demand. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may act as Servicer pursuant to Section 8.02;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2), Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2), Pooling and Servicing Agreement (Renaissance Home Equity Loan Tr Asset BKD Cer Series 2002-3)
Certain Matters Affecting the Trustee. (a) 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 Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(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 (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's 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 or waiver of all 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 so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be repaid by the investigationServicer upon demand;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, that the appointment of such agents or attorneys shall not relieve the Trustee of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to Default 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Servicer, the Special Servicer or the Trust FundExtension Adviser (unless the Trustee is acting as Servicer, to Special Servicer or the effect that such contribution will not (iExtension Adviser, as the case may be) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Chase Commercial Mortgage Securities Corp)
Certain Matters Affecting the Trustee. and the Securities Administrator.
(a) Except as otherwise provided in Section 8.0110.01:
(i) The Trustee and the Securities Administrator may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller, certificate the Company, the Master Servicer or the related Servicer, any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with counsel and the written any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Neither the Trustee nor the Securities Administrator shall be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Securities Administrator, as applicable, reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred with respect to the Trustee and at all times with respect to the Securities Administrator, neither the Trustee nor the Securities Administrator shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, Neither the Trustee nor the Securities Administrator shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided that if the payment within a reasonable time to the Trustee or the Securities Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the TrusteeTrustee or the Securities Administrator, not as applicable, reasonably assured to the Trustee or the Securities Administrator, as applicable, by the security afforded to it by the terms of this Agreement, . The Trustee or the Trustee Securities Administrator may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee and the Securities Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any paying agent other than the Securities Administrator to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer, which consents will not be unreasonably withheld. Neither the Trustee nor the Securities Administrator shall be liable or responsible for the misconduct or negligence of any of the Trustee’s or the Securities Administrator’s agents or attorneys or paying agent appointed hereunder by the Trustee or the Securities Administrator with due care and, when required, with the consent of the Master Servicer;
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes Should the Trustee or the Securities Administrator deem the nature of any action required on its part to be unclear, the Trustee or the Securities Administrator, respectively, may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of the Trustee or the Securities Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Securities Administrator shall be accountable for other than its attorney-in-fact negligence or willful misconduct in the performance of any such act;
(viii) Neither the Trustee nor the Securities Administrator shall be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder, except as provided in Subsection 10.07; and
(ix) Neither the Trustee nor the Securities Administrator shall have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following The Trustee is hereby directed by the issuance of Depositor to execute and deliver the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Insurance Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2006-Ac5), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-Ac1), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2006-Ac4)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.018.01 hereof:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Further, the Trustee may accept a copy of the vote of the Board of Directors of any party certified by its clerk or assistant clerk or secretary or assistant secretary as conclusive evidence of the authority of any person to act in accordance with such vote, and such vote may be considered as in full force and effect until receipt by the Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its part, rely upon a certificate of an Officer of the appropriate Person whenever in the administration of the Trust Agreement the Trustee shall deem it desirable that a matter be proved or established (unless other evidence be herein specifically prescribed) prior to taking, suffering or omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such written advice or Opinion of Counsel;
(iiiiv) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this the Trust Agreement or to institute, conduct or defend any litigation hereunder thereunder or in relation hereto thereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this the Trust 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this the Trust Agreement;
(vvi) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this the Trust Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vivii) The Trustee may execute any of the trusts or powers hereunder under the Trust Agreement or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under the Trust Agreement, provided that any agent appointed by the Trustee hereunder shall be entitled to all of the protections of the Trustee under this Agreement including, without limitation, the indemnification provided for under Section 8.05 hereof;
(viii) Whenever the Trustee is authorized herein to require acts or documents in addition to those required to be provided it in any matter, it shall be under no obligation to make any determination whether or not such additional acts or documents should be required unless obligated to do so under Section 8.01;
(ix) The permissive right or authority of the Trustee to take any action enumerated in this Agreement shall not be construed as a duty or obligation;
(x) The Trustee shall not be deemed to have notice of any matter, including without limitation any Event of Default, unless one of its Responsible Officers has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Office and such notice references the applicable Certificates generally, the applicable Servicer or Seller, the Trust or this Agreement;
(xi) The Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers (except with respect to its obligation to make Trustee Advances pursuant hereto) if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of any Servicer under this Agreement except with respect to the Trustee’s obligation to make Trustee Advances pursuant hereto and during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, any Servicer in accordance with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and without limiting the generality of this Section 8.02, the Trustee shall not have any duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see the maintenance of any such recording of filing or depositing or to any rerecording, refiling or redepositing any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate other than from funds available in the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of any Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder; and
(viixiv) To Anything in this Agreement to the extent authorized under the Code and the regulations promulgated thereundercontrary notwithstanding, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf lost profits), even if the Trustee has been advised of the Trust Fund. The Trustee shall sign on behalf likelihood of such loss or damage and regardless of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf form of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsaction.
(b) Following All rights of action under the issuance Trust 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost provisions of the Trustee or Trust Agreement. Any recovery of judgment shall, after provision for the Trust Fund, to the effect that such contribution will not (i) cause any portion payment of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) reasonable compensation, expenses, disbursements and advances of the Code)Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Appears in 5 contracts
Samples: Trust Agreement (Mortgage Pass-Through Certificates Series 2003-4f), Trust Agreement (Gs Mortgage Sec Corp Mort Pass THR Certs Ser 2003-3f), Trust Agreement (Gs Mortgage Securities Corp Loan Trust 2003-6f)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0110.01:
(ia) The Trustee may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(iib) The Trustee may consult with counsel and the written advice of such counsel counsel, and any advice or 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 with such advice or Opinion of Counsel;
(iiic) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivd) The Neither the Trustee nor any of its directors, officers, employees or agents shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it or any of them to be authorized or within the discretion or rights or powers conferred upon it the Trustee by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, Interests aggregating not less than 50%25% (in the case of conflicting requests by two or more 25% or greater Percentage Interests, the Trustee shall act in accordance with the first such request); 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 so such proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents subcontractors or attorneys; and
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes Nothing in this Agreement shall be construed to require the Trustee (except as might otherwise be required in its capacity as successor Servicer) to be expend its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsown funds.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (ChaseFlex Trust Series 2007-M1), Pooling and Servicing Agreement (Chase Mortgage Finance Trust Series 2007-S6), Pooling and Servicing Agreement (Chase Mortgage Finance Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the any written advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)cured) of which a Responsible Officer has knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 documentdocuments, unless requested in writing so to do so by the Holders of Certificates of any Class evidencing, as to such Class, evidencing Percentage Interests, Interests aggregating not less than 5051%; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerSeller or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationSeller upon demand. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, shall have no liability and makes no representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may act as Servicer pursuant to Section 8.02;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp), Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp), Pooling and Servicing Agreement (Renaissance Home Equity Loan Asset-BKD Cert Series 2002-1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0110.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller or the Master Servicer, certificate any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any paying agent to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer, which consents will not be unreasonably withheld. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee's agents or attorneys or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized under Trustee deem the Code and nature of any action required on its part to be unclear, the regulations promulgated thereunder, each Holder Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its attorney-in-fact negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder, except as provided in Subsection 9.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following The Trustee is hereby directed by the issuance of Depositor to execute and deliver the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Yield Maintenance Agreements.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Certificates Series 2004-He2), Pooling and Servicing Agreement (Bear Stearns Asset-Backed Certificates Series 2004-He3), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I LLC 2004-He5)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(ia) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's ’s Certificate, certificate of Servicing OfficerCertificate, 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 the Trustee may consult with counsel and the any written advice of such counsel and any or 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an a Servicer Termination Event of Default which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waivedcured), 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 investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior prior to the occurrence of an a Servicer Termination Event of Default hereunder which a Responsible Officer of the Trustee has actual knowledge and after the curing or waiver of all Servicer Termination 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 documentdocuments, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Certificateholder; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Servicer upon demand. Nothing in this clause (e) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors; and
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
attorneys or a custodian (vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer except that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be responsible for selecting the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify Servicer as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Codecustodian and bailee).
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (HSBC Home Equity Loan Trust (USA) 2007-1), Pooling and Servicing Agreement (HSBC Home Equity Loan Trust (USA) 2006-3), Pooling and Servicing Agreement (HSBC Home Equity Loan Trust (USA) 2007-3)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity reasonably satisfactory to it against such expense or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents accountants or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder; and
(vii) To The Trustee shall have no obligation to invest and reinvest any cash held in the extent authorized under absence of timely and specific written investment direction from the Code and Servicer or the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes Depositor. In no event shall the Trustee to be its attorney-in-fact liable for purposes the selection of signing any Tax Returns required to be filed on behalf of the Trust Fundinvestments or for investment losses incurred thereon. The Trustee shall sign on behalf have no liability in respect of losses incurred as a result of the Trust Fund and deliver liquidation of any investment incurred as a result of the liquidation of any investment prior to its stated maturity or the Servicer in a timely manner any Tax Returns prepared by or on behalf failure of the Servicer that or the Trustee is required Depositor to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsprovide timely written investment direction.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution of assets to be brought in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost name of the Trustee or for the Trust Fundbenefit of all the Holders of such Certificates, subject to the effect that such contribution will not (i) cause any portion provisions of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc), Pooling and Servicing Agreement (National City Mortgage Capital LLC), Pooling and Servicing Agreement (Salomon Broth Mort Sec Vii Inc Citi Hm Eq Ln Tr Se 2003-He1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the its trusts or powers hereunder or perform any of its duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for all costs, liabilities and expenses incurred by it in connection with its signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Af1), Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Ar4), Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Ar5)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the written any advice of such counsel and any or 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall not be under no any obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders or the NIMS Insurer pursuant to the provisions of this Agreement, unless such Certificateholders or the NIMS Insurer shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the right of the Trustee of the obligation, upon the occurrence of an Event of Default (which has to perform any discretionary act enumerated in this Agreement shall not been cured or waived), to exercise such of the rights and powers vested in it by this Agreementbe construed as a duty, and to use the same degree of care and skill in their exercise as a prudent investor would exercise Trustee shall not be answerable for other than its negligence or use under the circumstances willful misconduct in the conduct performance of any such investor's own affairsact;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an a Servicer Event of Default hereunder Termination and after the curing or waiver of all Servicer Events of Default Termination 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 documentdocuments, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Certificateholders or the NIMS Insurer; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationServicer upon demand. Nothing in this clause (v) shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, have any liability or make any representation as to any acts or omissions hereunder of the Servicer until such time as the Trustee may be required to act as Servicer pursuant to Section 7.02;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed by it with due care; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (ABFC 2006-Opt3 Trust), Pooling and Servicing Agreement (ABFC Asset-Backed Certificates, Series 2005-He2), Pooling and Servicing Agreement (ABFC 2006-Opt1 Trust)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, certificate of Servicing Officerthe Depositor, the Master Servicer or a Servicer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, evidencing Fractional Undivided Interests aggregating not less than 50%; provided25% of the portion of the Trust Fund related to such Certificates, however, and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder related Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any agent to perform its custodial functions with respect to the Mortgage Files or paying agent functions under this Agreement without the express written consent of the Master Servicer, which consent will not be unreasonably withheld. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee’s agents or attorneys or a custodian or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized under Trustee deem the Code and nature of any action required on its part, to be unclear, the regulations promulgated thereunder, each Holder Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions;
(viii) The right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept be accountable for other than its negligence or willful misconduct in the performance of any contribution of assets to the Trust Fund unless such act;
(subject to Section 10.01(f)ix) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost required to give any bond or surety with respect to the execution of the Trustee trust created hereby or the Trust Fundpowers granted hereunder, except as provided in Section 9.07; and
(x) The Trustee shall not have any duty to conduct any affirmative investigation as to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Seller pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as applicable, or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Prime Mortgage Trust 2007-2), Pooling and Servicing Agreement (Prime Mortgage Trust 2007-3), Pooling and Servicing Agreement (Prime Mortgage Trust 2006-2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing OfficerOfficers'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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the CertificateholdersCertificateholders or the NIMS Insurer, pursuant to the provisions of this Agreement, unless such Certificateholders or the NIMS Insurer, as applicable, shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the NIMS Insurer or the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, 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 the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee Trustee, by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense expense, or liability from such Certificateholders or the NIMS Insurer, as applicable, as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, that the Trustee shall not be responsible for any negligence or willful misconduct on the part of the Custodian or any such agents or attorneys appointed by it with due care; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf not be personally liable for any loss resulting from the investment of funds held in the Trust Fund and deliver to Collection Account at the Servicer in a timely manner any Tax Returns prepared by or on behalf direction of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsSection 3.12.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless provisions of this Agreement.
(subject to Section 10.01(f)c) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)[Reserved].
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2004-Wmc2), Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2004-Fre1), Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mort Pas THR Cert Ser 2003 WMC)
Certain Matters Affecting the Trustee. (a) and the Paying Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Paying Agent may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The Neither the Trustee nor the Paying Agent 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 Paying 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 Paying Agent shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Neither the Trustee nor the Paying 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 or waiver of all Events of Default which may have occurred, neither the Trustee nor the Paying Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Paying Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the TrusteeTrustee or the Paying Agent, respectively, not reasonably assured to the Trustee or the Paying Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Paying Agent, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationHolders;
(vi) The Trustee or the Paying Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Paying Agent of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to the Trust Fund Default unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost 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 Paying Agent shall be responsible for any act or omission of the Master Servicer or the Trust FundSpecial Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, to as the effect that such contribution will not (icase may be in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp), Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp), Pooling and Servicing Agreement (JP Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc14)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate Opinion of Servicing OfficerCounsel, advice of counsel, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel and the written advice of such counsel and any Opinion of Counsel or written advice 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 with such advice or Opinion of CounselCounsel or advice of counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any by litigation hereunder or in relation hereto at the request, order or direction of the Controlling Party or any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders or Controlling Party, as applicable, shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein by the Trustee or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge (which has not been cured or waivedcured), 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 its exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Certificateholders; 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 satisfactory to the Trustee against such cost, expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be repaid by the investigationServicer upon demand from the Servicer's own funds;
(vi) The the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(vii) the Trustee shall not be required to give any bond or surety in respect of the execution of the Trust created hereby or the powers granted hereunder; and
(viii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents attorneys or attorneys; and
(vii) To the extent authorized under the Code custodians and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept be responsible for any contribution misconduct or negligence on the part of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained any such agent, attorney or been furnished with an Opinion of Counsel, which shall not be a cost of custodian appointed by the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)with due care.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (American Business Financial Services Inc /De/), Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp), Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Abfs Mort Ln Tr 2002-3)
Certain Matters Affecting the Trustee. and the Trust Administrator.
(a) Except as otherwise provided in Section 8.01:
(i) The Each of the Trustee and the Trust Administrator and any director, officer, employee or agent of the Trustee or the Trust Administrator, as the case may be, may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 Each of the Trustee and the Trust Administrator, as the case may be, may consult with counsel and the written advice of such counsel its selection 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 with such advice or Opinion of Counsel;
(iii) The Neither the Trustee nor the Trust Administrator shall be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable or the Trust Administrator, as applicable, security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; the right of the Trustee or the Trust Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and neither the Trustee nor the Trust Administrator shall be answerable for other than its negligence or willful misconduct in the performance of any such act; nothing contained herein shall, however, relieve the Trust Administrator or the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Neither the Trustee nor the Trust Administrator shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder hereunder, and after the curing or waiver of all Servicer Events of Default which may have occurred, neither the Trustee nor the Trust Administrator shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Trust Administrator, as applicable, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the TrusteeTrustee or the Trust Administrator, as applicable, not reasonably assured to the Trustee or the Trust Administrator, as applicable, by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee or the Trust Administrator, as applicable, may require reasonable indemnity satisfactory to it against such expense cost, expense, or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Each of the Trustee and the Trust Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and neither the Trustee nor the Trust Administrator shall be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care;
(vii) Neither the Trustee nor the Trust Administrator shall be personally liable for any loss resulting from the investment of funds held in the Collection Account at the direction of the Servicer pursuant to Section 3.12; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf Any request or direction of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to Depositor, the Servicer or the Certificateholders mentioned herein shall be sufficiently evidenced in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionswriting.
(b) Following the issuance All rights of action under this Agreement or under any of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of enforceable by the Trustee or the Trust FundAdministrator, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee or the Trust Administrator shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the effect that such contribution will not (i) cause any portion provisions of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-He4), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Wfhe3), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Wfhe2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity reasonably satisfactory to it against such expense or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents accountants or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder;
(vii) The Trustee shall have no obligation to invest and reinvest any cash held in the absence of timely and specific written investment direction from the Servicer or the Depositor. In no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Servicer or the Depositor to provide timely written investment direction; and
(viiviii) To the extent authorized In order to comply with its duties under the Code USA Patriot Act of 2001, the Trustee shall obtain and verify certain information and documentation from the regulations promulgated thereunderother parties to this Agreement including, but not limited to, each Holder of a Class R Certificate hereby irrevocably appoints such party's name, address and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsother identifying information.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution of assets to be brought in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost name of the Trustee or for the Trust Fundbenefit of all the Holders of such Certificates, subject to the effect that such contribution will not (i) cause any portion provisions of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2006-Opt1), Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2004-Nc1), Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc1)
Certain Matters Affecting the Trustee. (a) and the Paying Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Paying Agent may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The Neither the Trustee nor the Paying Agent 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 Paying 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 Paying Agent shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Neither the Trustee nor the Paying 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 or waiver of all Events of Default which may have occurred, neither the Trustee nor the Paying Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Paying Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the TrusteeTrustee or the Paying Agent, respectively, not reasonably assured to the Trustee or the Paying Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Paying Agent, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationHolders;
(vi) The Trustee or the Paying Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Paying Agent of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to the Trust Fund Default unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost 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 Paying Agent shall be responsible for any act or omission of the Master Servicer or the Trust FundSpecial Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, to as the effect that such contribution will not (icase may be in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (JPMorgan Chase Commercial Mortgage Securities Corp, Series 2005-Cibc11), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C3), Pooling and Servicing Agreement (JPMorgan Chase Commercial Mortgage Securities Corp Series 2005-Ldp3)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 and the Trustee shall have no responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counsel;
(iiiA) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; (B) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; and (C) provided, that subject to the foregoing clause (A), nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Neither the Trustee nor any of its directors, officers, employees, Affiliates, agents or "control" persons within the meaning of the Act shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee 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 or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% (or such other percentage as is specified herein) of the Percentage Interests of any Class evidencing, as to such affected Class, Percentage Interests, aggregating not less than 50%; 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 so proceedingtaking any such action. The reasonable expense of every such examination investigation shall be paid by the Servicer, Servicer or the Special Servicer if an Event of Default shall have occurred and is continuingbe continuing relating to the Servicer, or the Special Servicer, respectively, and otherwise by the Certificateholder Certificateholders requesting the investigation;; and
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to attorneys but shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf relieved of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsobligations hereunder.
(b) Following the issuance of the CertificatesStart-up Day, the Trustee shall not not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it the Trustee shall have obtained or been furnished with received an Opinion of Counsel, which shall not Counsel (the costs of obtaining such opinion to be a cost of borne by the Trustee or the Trust Fund, Person requesting such contribution) to the effect that the inclusion of such contribution assets in the Trust Fund will not (i) cause any portion of either the applicable Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or subject either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(iic) cause All rights of action under this Agreement or under any of the Trust Fund to 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 other 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. The Trustee shall have no duty to conduct any federal tax affirmative investigation as a result of such contribution (including to the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Asset Securitization Corp Series 1997-D5), Pooling and Servicing Agreement (Asset Securitization Corp Comm Mort Pass THR Cer Ser 1997-D4), Pooling and Servicing Agreement (Asset Securitization Corp Series 1997-D5)
Certain Matters Affecting the Trustee. (a) and the Paying Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Paying Agent may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The Neither the Trustee nor the Paying Agent 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 Paying 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 Paying Agent shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Neither the Trustee nor the Paying 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 or waiver of all Events of Default which may have occurred, neither the Trustee nor the Paying Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Paying Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the TrusteeTrustee or the Paying Agent, respectively, not reasonably assured to the Trustee or the Paying Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Paying Agent, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationHolders;
(vi) The Trustee or the Paying Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Paying Agent of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to the Trust Fund Default unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost 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 Paying Agent shall be responsible for any act or omission of the Master Servicer or the Trust FundSpecial Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, to as the effect that such contribution will not (icase may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc17), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Cibc15), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Cibc19)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel counsel, and the written any advice of such counsel and any counsel, or 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement or any Enhancement Agreement, or to institute, conduct or defend any litigation hereunder or thereunder or in relation hereto to this Agreement or any Enhancement Agreement, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement or any Enhancement 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; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waived), 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 its exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing more than 25% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such matters that do not relate to all Series, 25% of the aggregate unpaid principal amount of the Investor Certificates of any Class evidencing, as all Series to which such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationmatters relate);
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder; provided, however, that the Trustee shall not hold any Eligible Investment through an agent or nominee except as expressly permitted by Section 4.02; and
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(bSection 11.01(a) Following the issuance of the Certificateshereof, the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee Receivables or the Trust FundAccounts for the purpose of establishing the presence or absence of defects, to the effect that such contribution will not (i) cause compliance by each Transferor with its representations and warranties or for any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)other purpose.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement, Pooling and Servicing Agreement (Capital One Master Trust), Pooling and Servicing Agreement (Capital One Funding, LLC)
Certain Matters Affecting the Trustee. (a) 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 Servicing Officer, 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 and 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 with such advice or Opinion of Counseltherewith;
(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 or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's 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 hereunder, and after the curing or waiver 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To -in-fact, provided that the extent authorized under the Code and the regulations promulgated thereunder, each Holder use of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its any such agent or attorney-in-fact for purposes of signing shall not relieve the Trustee from any Tax Returns required to be filed on behalf of its obligations hereunder, and the Trust Fund. The Trustee shall sign on behalf remain responsible for all acts and omissions of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors agent or omissions.attorney-in-fact;
(bvii) Following the issuance of the CertificatesFor all purposes under this Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Master Servicer, the Special Servicer or the Trust FundREMIC Administrator (unless the Trustee is acting as Master Servicer, to Special Servicer or REMIC Administrator, as the effect that such contribution will not (icase may be) cause or for any portion act or omission of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding Depositor or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Mortgage Loan Seller.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.018.1:
(i) The Trustee may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, 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 and the Trustee shall have no responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counsel;
(iiiA) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; (B) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; provided, however, that subject to the foregoing clause (A), nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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, approval bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to at least __% (or such other percentage as is specified herein) of the aggregate Voting Rights of any Class evidencing, as to such affected Class, Percentage Interests, aggregating not less than 50%; 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 so proceedingtaking any such action. 138 The reasonable expense of every such examination investigation shall be paid by the Servicer, Servicer or the Special Servicer if an Event of Default shall have occurred and is continuingbe continuing relating to the Servicer, or the Special Servicer, respectively, and otherwise by the Certificateholder Certificateholders requesting the investigation;; and
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf not be liable or responsible for the misconduct or negligence of any of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared Trustee's agents or attorneys appointed with due care by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionshereunder.
(b) Following the issuance of the CertificatesStart-up Day, the Trustee shall not not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it the Trustee shall have obtained or been furnished with received an Opinion of Counsel, which shall not Counsel (the costs of obtaining such opinion to be a cost of borne by the Trustee or the Trust Fund, Person requesting such contribution) to the effect that the inclusion of such contribution assets in the Trust Fund will not (i) cause any portion of either the applicable Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or subject either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(iic) cause All rights of action under this Agreement or under any of the Trust Fund to 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 other 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. The Trustee shall have no duty to conduct any federal tax affirmative investigation as a result of such contribution (including to the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Certain Matters Affecting the Trustee. Except for its own gross negligence, reckless disregard of its duties, bad faith or misconduct:
(a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may rely on and shall be protected from liability to the Issuer and the Noteholders in acting on, or in refraining from acting upon in accord with, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, conversation, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed signed, sent or presented made by the proper party Person or partiesPersons;
(iib) The the Trustee may consult with counsel and the written any advice of such counsel and any Opinion of Counsel (including without limitation counsel to the Issuer or the Servicer) shall be full and complete authorization and protection from liability to the Issuer and the Noteholders in respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion opinion of Counselcounsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the CertificateholdersNoteholders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Noteholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an any Servicer Default or Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge or have received notice (which has not been cured or waivedcured), to exercise such of the rights and powers vested in it by this AgreementIndenture, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(ivd) The neither the Trustee nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall not be personally liable for any action taken, suffered or omitted to be taken by it the Trustee or such Person in good faith and believed by it such Person to be authorized or within the discretion or rights or powers conferred upon it by this AgreementIndenture, nor for any action taken or omitted to be taken by any other party hereto;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any Monthly Servicing Report, any other report or statement delivered to the Trustee by the Servicer, resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Facility Investors; 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 AgreementIndenture, the Trustee may require reasonable indemnity satisfactory to the Trustee against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;action.
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesSection 13.1(b), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Pledged Loans for the purpose of establishing the presence or absence of defects, the compliance by the Servicer or the Issuer with their respective representations and warranties or for any other purpose;
(subject h) the right of the Trustee to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which perform any discretionary act enumerated in this Indenture shall not be construed as a cost of duty, and the Trustee or shall not be answerable for the Trust Fund, to the effect that performance of such contribution will not act; and
(i) cause the Trustee shall not be required to give any portion bond or surety in respect of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)powers granted hereunder.
Appears in 4 contracts
Samples: Amended and Restated Indenture and Servicing Agreement (Travel & Leisure Co.), Amended and Restated Indenture and Servicing Agreement (Wyndham Destinations, Inc.), Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any assignment of Receivables in Additional Accounts, the initial report, the monthly Servicer's certificate, the annual Servicer's certificate, the monthly payment instructions and notification to the Trustee, the monthly Certificateholders' statement, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel and the written advice of such counsel counsel, 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement or any Enhancement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the CertificateholdersCertificateholders or any Enhancement Provider, pursuant to the provisions of this Agreement, unless such Certificateholders or Enhancement Provider shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this AgreementAgreement and any Enhancement, and to use the same degree of care and skill in their its exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any assignment of Receivables in Additional Accounts, the initial report, the monthly Servicer's certificate, the annual Servicer's certificate, the monthly payment instructions and notification to the Trustee, the monthly Certificateholders' statement, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Invested Amount of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; provided, however, that Series which could be adversely affected 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 does not perform 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationacts;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatessubsection 11.01(a), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Receivables or the Accounts for the purpose of establishing the presence or absence of defects, the compliance by the Transferor with its representations and warranties or for any other purpose; and
(subject to Section 10.01(f)h) it shall have obtained or been furnished with an Opinion whenever in the administration of Counsel, which shall not be a cost of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trust FundTrustee (unless other evidence be herein specifically prescribed) may, to in the effect that such contribution will not (i) cause any portion absence of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax bad faith on "prohibited transactions" imposed under Section 860F(a) of the Code)its part, rely upon an Officer's Certificate.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bank One Delaware National Association), Pooling and Servicing Agreement (First Usa Credit Card Master Trust), Pooling and Servicing Agreement (First Usa Credit Card Master Trust)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(ia) The Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate Opinion of Servicing OfficerCounsel, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(iib) The Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counseltherewith;
(iiic) 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 CertificateholdersCertificateholders or the Certificate Insurer, pursuant to the provisions of this Agreement, unless such Certificateholders or the Certificate Insurer, as the case may be, shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waivedcured), 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 its exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(ivd) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Nations Banc Asset Sec Ins Asset Backed Cert Series 1997-1), Pooling and Servicing Agreement (Ace Securities Corp), Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01 hereof:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Further, the Trustee may accept a copy of the vote of the Board of Directors of any party certified by its clerk or assistant clerk or secretary or assistant secretary as conclusive evidence of the authority of any person to act in accordance with such vote, and such vote may be considered as in full force and effect until receipt by the Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its part, rely upon a certificate of an Officer of the appropriate Person whenever in the administration of the Trust Agreement the Trustee shall deem it desirable that a matter be proved or established (unless other evidence be herein specifically prescribed) prior to taking, suffering or omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such written advice or Opinion of Counsel;
(iiiiv) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this the Trust Agreement or to institute, conduct or defend any litigation hereunder thereunder or in relation hereto thereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this the Trust 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this the Trust Agreement;
(vvi) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this the Trust Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vivii) The Trustee may execute any of the trusts or powers hereunder under the Trust Agreement or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under the Trust Agreement, provided that any agent appointed by the Trustee hereunder shall be entitled to all of the protections of the Trustee under this Agreement including, without limitation, the indemnification provided for under Section 9.05 hereof;
(viii) Whenever the Trustee is authorized herein to require acts or documents in addition to those required to be provided it in any matter, it shall be under no obligation to make any determination whether or not such additional acts or documents should be required unless obligated to do so under Section 9.01;
(ix) The permissive right or authority of the Trustee to take any action enumerated in this Agreement shall not be construed as a duty or obligation;
(x) The Trustee shall not be deemed to have notice of any matter, including without limitation any Event of Default, unless one of its Responsible Officers has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Office and such notice references the applicable Certificates generally, the applicable Servicer or Seller, the Trust or this Agreement;
(xi) The Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers (except with respect to its obligation to make Monthly Advances as successor Master Servicer pursuant hereto) if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of any Servicer or the Master Servicer under this Agreement except with respect to the Trustee’s obligation to make Monthly Advances pursuant hereto as successor Master Servicer or any successor master servicer under this Agreement and during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, any Servicer or the Master Servicer in accordance with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and without limiting the generality of this Section 9.02, the Trustee shall not have any duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see the maintenance of any such recording of filing or depositing or to any rerecording, refiling or redepositing any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate other than from funds available in the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of any Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder; and
(viixiv) To Anything in this Agreement to the extent authorized under the Code and the regulations promulgated thereundercontrary notwithstanding, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf lost profits), even if the Trustee has been advised of the Trust Fund. The Trustee shall sign on behalf likelihood of such loss or damage and regardless of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf form of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsaction.
(b) Following All rights of action under the issuance Trust 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost provisions of the Trustee or Trust Agreement. Any recovery of judgment shall, after provision for the Trust Fund, to the effect that such contribution will not (i) cause any portion payment of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) reasonable compensation, expenses, disbursements and advances of the Code)Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Appears in 3 contracts
Samples: Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2007-2f), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2006-9f), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2007-5f)
Certain Matters Affecting the Trustee. (a) and the Paying Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee and the Paying Agent may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The Neither the Trustee nor the Paying Agent 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 Paying 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 Paying Agent shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Neither the Trustee nor the Paying 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 or waiver of all Events of Default which may have occurred, neither the Trustee nor the Paying Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Paying Agent of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the TrusteeTrustee or the Paying Agent, respectively, not reasonably assured to the Trustee or the Paying Agent by the security afforded to it by the terms of this Agreement, the Trustee or the Paying Agent, respectively, may require reasonable indemnity from such requesting Holders against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationHolders;
(vi) The Trustee or the Paying Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, that the appointment of such agents or attorneys shall not relieve the Trustee or the Paying Agent of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to the Trust Fund Default unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost 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 Paying Agent shall be responsible for any act or omission of any Master Servicer or the Trust FundSpecial Servicer (unless the Trustee is acting as a Master Servicer or Special Servicer, to as the effect that such contribution will not (icase may be in which case the Trustee shall only be responsible for its own actions as a Master Servicer or Special Servicer) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp9), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp7), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-Ldp9)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity reasonably satisfactory to it against such expense or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents accountants or attorneys; and, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder;
(vii) To The Trustee shall have no obligation to invest and reinvest any cash held in the extent authorized under absence of timely and specific written investment direction from the Code and Servicer or the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes Depositor. In no event shall the Trustee to be its attorney-in-fact liable for purposes the selection of signing any Tax Returns required to be filed on behalf of the Trust Fundinvestments or for investment losses incurred thereon. The Trustee shall sign on behalf have no liability in respect of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax losses incurred as a result of such contribution (including the imposition liquidation of any federal tax on "prohibited transactions" imposed under Section 860F(a) investment incurred as a result of the Code).liquidation of any investment prior to its stated maturity or the failure of the Servicer or the Depositor to provide timely written investment direction; and
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust 2005-Nc2), Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc3), Pooling and Servicing Agreement (Carrington Mortgage Loan Trust 2005-Nc2)
Certain Matters Affecting the Trustee. (a) 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 Servicing Officer, 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 and 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 with such advice or Opinion of Counseltherewith;
(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 or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's 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 hereunder, and after the curing or waiver 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To -in-fact, provided that the extent authorized under the Code and the regulations promulgated thereunder, each Holder use of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its any such agent or attorney-in-fact for purposes shall not relieve the Trustee from afy of signing any Tax Returns required to be filed on behalf of it{ obligations hereunder, and the Trust Fund. The Trustee shall sign on behalf remain responsible for all acts and omissions of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors agent or omissions.attorney-in-fact;
(bvii) Following the issuance of the CertificatesFor all purposes under this Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Master Servicer, the Special Servicer or the Trust FundREMIC Administrator (unless the Trustee is acting as Master Servicer, to Special Servicer or REMIC Administrator, as the effect that such contribution will not (icase may be) cause or for any portion act or omission of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding Depositor or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Mortgage Loan Seller.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel and the written any advice of such counsel and any or 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of a Servicer Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has knowledge, to exercise such of the rights and powers vested in it by this AgreementAgreement or any Supplement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or documentdocument believed by it to be genuine, unless requested in writing so to do by (i) Holders of Investor Certificates evidencing more than 25% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such matters that do not relate to all Series, 25% of the aggregate unpaid principal amount of the Investor Certificates of any Class evidencing, as all Series to which such Class, Percentage Interests, aggregating not less than 50%matters relate); 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 isshall be, 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 cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationServicer upon demand;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(bSection 11.1(a) Following the issuance of the Certificateshereof, the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Receivables or the Accounts for the purpose of establishing the presence or absence of defects, the compliance by the Seller with its representations and warranties or for any other purpose; and
(subject h) the right of the Trustee to Section 10.01(f)) it shall have obtained perform any discretionary act enumerated in this Agreement or been furnished with an Opinion of Counsel, which any Supplement shall not be construed as a cost of duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition performance of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)such act.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Distribution Financial Services Floorplan Master Trust), Pooling and Servicing Agreement (CDF Funding, Inc.), Pooling and Servicing Agreement (Deutsche Floorplan Receivables L P)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0110.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller, certificate the Company or the Master Servicer, any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any paying agent to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer, which consents will not be unreasonably withheld. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee’s agents or attorneys or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized under Trustee deem the Code and nature of any action required on its part to be unclear, the regulations promulgated thereunder, each Holder Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its attorney-in-fact negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder, except as provided in Section 10.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following The Trustee, the issuance Swap Administrator and the Supplemental Interest Trust Trustee are hereby directed by the Depositor to execute, deliver and perform its respective obligations under the Swap Administration Agreement and to perform the obligations of the CertificatesTrustee, the Swap Administrator and the Supplemental Interest Trust Trustee, respectively, thereunder on the Closing Date and thereafter on behalf of the Holders of the Certificates (and any amendments or supplements to the Swap Administration Agreement as may be requested by the Majority Class CE Certificateholder regarding the distributions to be made to it or its designees thereunder). The Seller, the Master Servicer, the Depositor and the Certificateholders by acceptance of their Certificates acknowledge and agree that the Trustee, the Swap Administrator and the Supplemental Interest Trust Trustee shall execute, deliver and perform its respective obligations under the Swap Administration Agreement and shall do so solely in its capacity as Trustee, the Swap Administrator and the Supplemental Interest Trust Trustee and not in its individual capacity. Amounts payable by the Trustee on any Distribution Date to the Swap Administrator shall be paid by the Trustee as provided herein. The Trustee, the Swap Administrator and the Supplemental Interest Trust Trustee in its individual capacity shall have no responsibility for any of the undertakings, agreements or representations by it with respect to the Swap Administration Agreement, including, without limitation, for making any payments thereunder. It is acknowledged and agreed that the Person serving as Trustee hereunder shall also serve as Swap Administrator under the Swap Administration Agreement and act as Supplemental Interest Trust Trustee under the Swap Agreement. The Swap Administrator shall not have any liability for any failure or delay in payments to the Trust which are required under the Swap Administration Agreement where such failure or delay is due to the failure or delay of the Swap Provider in making such payment to the Swap Administrator. LaSalle Bank National Association in its individual capacity and as Swap Administrator, the Trustee and the Supplemental Interest Trust Trustee shall not accept be entitled to be indemnified and held harmless by the Trust from and against any contribution and all losses, claims, expenses or other liabilities that arise by reason of assets or in connection with the performance or observance by each of the Swap Administrator, the Trustee and the Supplemental Interest Trust Trustee of its duties or obligations under the Swap Agreement or the Swap Administration Agreement, except to the extent that the same is due to the Swap Administrator’s, the Trustee’s or the Supplemental Interest Trust Fund unless (subject Trustee’s gross negligence, willful misconduct or fraud. Any Person appointed as successor trustee pursuant to Section 10.01(f)) it 10.09 shall have obtained or been furnished with an Opinion of Counsel, which shall not also be a cost of required to serve as successor swap administrator and successor supplemental interest trust trustee under the Trustee or Swap Agreement and the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Swap Administration Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-He6), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-He6), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2007-He7)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate Opinion of Servicing OfficerCounsel, advice of counsel, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel and the written advice of such counsel and any Opinion of Counsel or written advice 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 with such advice or Opinion of CounselCounsel or advice of counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any by litigation hereunder or in relation hereto at the request, order or direction of the Certificate Insurer or any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders or the Certificate Insurer, as applicable, shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein by the Trustee or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge (which has not been cured or waivedcured), 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 its exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Certificate Insurer or the Majority Certificateholders; 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 satisfactory to the Trustee against such cost, expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be repaid by the investigationServicer upon demand from the Servicer's own funds;
(vi) The the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(vii) the Trustee shall not be required to give any bond or surety in respect of the execution of the Trust created hereby or the powers granted hereunder; and
(viii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents attorneys or attorneys; and
(vii) To the extent authorized under the Code custodians and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept be responsible for any contribution misconduct or negligence on the part of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained any such agent, attorney or been furnished with an Opinion of Counsel, which shall not be a cost of custodian appointed by the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)with due care.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc), Pooling and Servicing Agreement (American Business Financial Services Inc /De/), Pooling and Servicing Agreement (American Business Financial Services Inc /De/)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0112.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any opinion of such counsel 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 with such advice or Opinion opinion of Counselcounsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any by litigation hereunder or in relation hereto at the request, order or direction of the Certificate Insurer or any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders or the Certificate Insurer, as applicable, shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waivedcured), 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 its exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Certificate Insurer, Holders of Class A, Class M and Class B Certificates of any Class evidencing, as to such Class, evidencing Percentage Interests, Interests aggregating not less than 50%25% of the Class Principal Balances of all Class A, Class M and Class B Certificates; 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 so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through AffiliatesTrustee, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to shall be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined repaid by the Servicer pursuant to applicable federal, state or local tax laws, provided that upon demand from the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).Servicer's own funds;
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (TMS Mortgage Inc), Pooling and Servicing Agreement (TMS Mortgage Inc), Pooling and Servicing Agreement (Money Store Home Equity Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0110.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller or the Master Servicer, certificate any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any paying agent to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer and the Certificate Insurer, which consents will not be unreasonably withheld. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee's agents or attorneys or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized under Trustee deem the Code and nature of any action required on its part to be unclear, the regulations promulgated thereunder, each Holder Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its attorney-in-fact negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder, except as provided in Subsection 9.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following The Trustee is hereby directed by the issuance Depositor to execute and deliver the Insurance Agreement and the Yield Maintenance Agreements. Amounts payable by the Trust on the Closing Date pursuant to the Yield Maintenance Agreement shall be paid by the Depositor or its designee. The Trustee in its individual capacity shall have no responsibility for any of the Certificatesundertakings, the Trustee shall not accept any contribution of assets agreements or representations with respect to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of CounselYield Maintenance Agreement, which shall not be a cost of the Trustee or the Trust Fundincluding, to the effect that such contribution will not (i) cause without limitation, for making any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)payments thereunder.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2004-Fr2), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2004-Fr3), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2004-He9)
Certain Matters Affecting the Trustee. Except for its own gross negligence, reckless disregard of its duties, bad faith or misconduct:
(a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may rely on and shall be protected from liability to the Issuer and the Noteholders in acting on, or in refraining from acting upon in accord with, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, conversation, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed signed, sent or presented made by the proper party Person or partiesPersons;
(iib) The the Trustee may consult with counsel and the written any advice of such counsel and any Opinion of Counsel (including without limitation counsel to the Issuer or the Servicer) shall be full and complete authorization and protection from liability to the Issuer and the Noteholders in respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion opinion of Counselcounsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the CertificateholdersNoteholders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Noteholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event any Servicer Default of Default which a Responsible Officer of the Trustee shall have actual knowledge or have received notice (which has not been cured or waivedcured), to exercise such of the rights and powers vested in it by this AgreementIndenture, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(ivd) The neither the Trustee nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall not be personally liable for any action taken, suffered or omitted to be taken by it the Trustee or such Person in good faith and believed by it such Person to be authorized or within the discretion or rights or powers conferred upon it by this AgreementIndenture, nor for any action taken or omitted to be taken by any other party hereto;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any Monthly Servicing Report, any other report or statement delivered to the Trustee by the Servicer, resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by (A) the Insurer, if no Insurer Default has occurred and is continuing or (B) during the continuation of an Insurer Default, the Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less more than 50%% of the Aggregate Principal Amount of the Notes; 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 AgreementIndenture, the Trustee may require reasonable indemnity satisfactory to the Trustee against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;action.
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesSection 13.1(b), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Pledged Loans for the purpose of establishing the presence or absence of defects, the compliance by the Servicer or the Issuer with their respective representations and warranties or for any other purpose;
(subject h) the right of the Trustee to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which perform any discretionary act enumerated in this Indenture shall not be construed as a cost of duty, and the Trustee or shall not be answerable for the Trust Fund, to the effect that performance of such contribution will not act; and
(i) cause the Trustee shall not be required to give any portion bond or surety in respect of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)powers granted hereunder.
Appears in 3 contracts
Samples: Indenture and Servicing Agreement (Cendant Corp), Indenture and Servicing Agreement (Cendant Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Certain Matters Affecting the Trustee. (a) the Certificate Administrator and the Tax Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee the Trustee, the Certificate Administrator and the Tax Administrator, may each rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, 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 without error and to have been signed or presented by the proper party or parties;
(ii) The Trustee the Trustee, the Certificate Administrator and the Tax Administrator may each consult with counsel and the any written advice or opinion of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The 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 provided to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or therebythereby satisfactory to the Trustee, in its reasonable discretion; none of the Trustee, the Certificate Administrator or the Tax Administrator shall be required to expend or risk its own funds (except to pay expenses that could reasonably be expected to be incurred in connection with the performance of its normal duties) 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; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured waived or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee none of the Trustee, the Certificate Administrator or the Tax Administrator 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 prior to the occurrence of an Event of Default hereunder and after the waiver or curing or waiver of all 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 an indemnity satisfactory to the Trustee, in its reasonable indemnity discretion, against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The except as contemplated by Section 8.06 and, with respect to the Trustee alone, Section 8.14, none of the Trustee, the Certificate Administrator or the Tax Administrator shall be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers hereunder or vested in it by this Agreement, and the Certificate Administrator and the Tax Administrator may each perform any of their respective duties hereunder hereunder, either directly or by or through Affiliates, the Custodian or other agents or attorneys-in-fact, provided that the use of the Custodian or other agents or attorneys-in-fact shall not be deemed to relieve the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, of any of its duties and obligations hereunder (except as expressly set forth herein);
(viii) none of the Trustee, the Certificate Administrator or the Tax Administrator shall be responsible for any act or omission of a Master Servicer or a Special Servicer (unless, in the case of the Trustee, it is acting as a Master Servicer or a Special Servicer, as the case may be) or of the Depositor; and
(viiix) To neither the extent authorized Trustee nor the Certificate Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article V under this Agreement or under applicable law with respect to any transfer of any Certificate or any interest therein, other than to require delivery of the Code certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Certificates in the Certificate Register and to examine the same to determine substantial compliance with the express requirements of this Agreement; and the regulations promulgated thereunderTrustee and the Certificate Registrar shall have no liability for transfers, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes including transfers made through the Trustee to be its attorneybook-in-fact for purposes of signing any Tax Returns required to be filed on behalf entry facilities of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by Depository or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state between or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors among Depository Participants or omissions.
(b) Following the issuance beneficial owners of the Certificates, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Certificate Register.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01 hereof:
(i) The Trustee may request and rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. Further, the Trustee may accept a copy of the vote of the Board of Directors of any party certified by its clerk or assistant clerk or secretary or assistant secretary as conclusive evidence of the authority of any person to act in accordance with such vote, and such vote may be considered as in full force and effect until receipt by the Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its part, rely upon a certificate of an Officer of the appropriate Person whenever in the administration of the Trust Agreement the Trustee shall deem it desirable that a matter be proved or established (unless other evidence be herein specifically prescribed) prior to taking, suffering or omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counsel;
(iiiiv) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this the Trust Agreement or to institute, conduct or defend any litigation hereunder thereunder or in relation hereto thereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this the Trust Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(ivv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this the Trust Agreement;
(vvi) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, however, that if the payment reasonably satisfactory to it 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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this the Trust Agreement, the Trustee may require reasonable indemnity reasonably satisfactory to it against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vivii) The Trustee may execute any of the trusts or powers hereunder under the Trust Agreement or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under the Trust Agreement, provided that any agent appointed by the Trustee hereunder shall be entitled to all of the protections of the Trustee under this Agreement including, without limitation, the indemnification provided for under Section 9.05 hereof;
(viii) Whenever the Trustee is authorized herein to require acts or documents in addition to those required to be provided it in any matter, it shall be under no obligation to make any determination whether or not such additional acts or documents should be required unless obligated to do so under Section 9.01;
(ix) The permissive right or authority of the Trustee to take any action enumerated in this Agreement shall not be construed as a duty or obligation;
(x) The Trustee shall not be deemed to have notice of any matter, including without limitation any Event of Default, unless one of its Responsible Officers has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Office and such notice references the applicable Certificates generally, the applicable Servicer or Seller, the Trust or this Agreement;
(xi) The Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers (except with respect to its obligation to make Monthly Advances as successor Master Servicer pursuant hereto) if there is reasonable ground for believing that the repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Securities Administrator, any Servicer or the Master Servicer under this Agreement except with respect to the Trustee’s obligation to make Monthly Advances pursuant hereto as successor Master Servicer or any successor master servicer under this Agreement and during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of the Master Servicer in accordance with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and without limiting the generality of this Section 9.02, the Trustee shall not have any duty (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see the maintenance of any such recording of filing or depositing or to any rerecording, refiling or redepositing any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate other than from funds available in the Certificate Account, or (D) to confirm or verify the contents of any reports or certificates of any Servicer delivered to the Trustee pursuant to this Agreement believed by the Trustee to be genuine and to have been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder; and
(viixiv) To Anything in this Agreement to the extent authorized under the Code and the regulations promulgated thereundercontrary notwithstanding, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf lost profits), even if the Trustee has been advised of the Trust Fund. The Trustee shall sign on behalf likelihood of such loss or damage and regardless of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf form of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsaction.
(b) Following All rights of action under the issuance Trust 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost provisions of the Trustee or Trust Agreement. Any recovery of judgment shall, after provision for the Trust Fund, to the effect that such contribution will not (i) cause any portion payment of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) reasonable compensation, expenses, disbursements and advances of the Code)Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Appears in 3 contracts
Samples: Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2007-Ar1), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2007-Ar2), Master Servicing and Trust Agreement (STARM Mortgage Loan Trust 2007-1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 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 with such advice or Opinion of Counsel;
(iiiA) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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;
(B) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; and
(C) provided, that subject to the foregoing clause (A), nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Neither the Trustee nor any of its directors, officers, employees, Affiliates, agents or "control" persons within the meaning of the Act shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee 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 or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% (or such other percentage as is specified herein) of the Percentage Interests of any Class evidencing, as to such affected Class, Percentage Interests, aggregating not less than 50%; 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 so proceedingtaking any such action. The reasonable expense of every such examination investigation shall be paid by the Master Servicer or the Special Servicer, as applicable, if an Event of Default shall have occurred and is continuingbe continuing relating to the Master Servicer, or the Special Servicer, respectively, and otherwise by the Certificateholder Certificateholders requesting the investigation;; and
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder attorneys but shall not be relieved of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsobligations hereunder.
(b) Following the issuance of the CertificatesStart-up Day, the Trustee shall not not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it the Trustee shall have obtained or been furnished with received an Opinion of Counsel, which shall not Counsel (the costs of obtaining such opinion to be a cost of borne by the Trustee or the Trust Fund, Person requesting such contribution) to the effect that the inclusion of such contribution assets in the Trust Fund will not (i) cause any portion of the applicable Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or subject any of the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(iic) cause All rights of action under this Agreement or under any of the Trust Fund to 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 other 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. The Trustee shall have no duty to conduct any federal tax affirmative investigation as a result of such contribution (including to the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Seller pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Gs Mortgages Sec Corp Ii Com Mort Pas THR Cert Ser 1998-C1), Pooling and Servicing Agreement (Gs Mortgages Sec Corp Ii Com Mort Pas THR Cert Ser 1998-C1), Pooling and Servicing Agreement (Gs Mortgages Sec Corp Ii Com Mort Pas THR Cert Ser 1998-C1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or 131 other paper or document 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the CertificateholdersCertificateholders or the Insurer, pursuant to the provisions of this Agreement, unless such Certificateholders or the Insurer shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or therebythereby and the Insurer has given its consent; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waivedcured), 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 investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by the Insurer or by the Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%50%with the written consent of the Insurer; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Master Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder or the Insurer requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys provided that the Trustee shall remain liable for any acts of such agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Master Servicer in a timely manner any Tax Returns prepared by or on behalf of the Master Servicer that the Trustee is required to sign as determined by the Master Servicer pursuant to applicable federal, state or local tax laws, provided that the Master Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesCertificates (and except as provided for in Section 2.04), the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, Counsel to the effect that such contribution will not (i) cause any portion of the applicable REMIC I, REMIC II, REMIC III or REMIC IV to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0115.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, OfficerOfficers' Certificate, Servicer's Certificate, certificate of Servicing Officerauditors, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond bond, or other paper or document 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 any written advice of such counsel and any or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder under this Agreement in good faith and in accordance with such written advice or Opinion of Counsel;.
(iii) The Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct conduct, or defend any litigation hereunder under this Agreement or in relation hereto to this Agreement, at the request, order order, or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to the Trustee against the costs, expenses expenses, and liabilities which that may be incurred therein or thereby; nothing . Nothing contained herein shallin this Agreement, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has that shall not have been cured or waivedcured), 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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;.
(iv) The Trustee shall not be personally liable for any action taken, suffered 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 or waiver of all Events of Default which that may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond bond, or other paper or document, unless requested in writing so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%25% of the Certificate Balance or not less than 25% of the Notional Principal Amount of the Class I Certificates; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses expenses, or liabilities likely to be incurred by it in the making of such investigation isshall be, 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 cost, expense, or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Servicer upon demand. Nothing in this clause (v) shall affect the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors.
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder under this Agreement either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian. The Trustee shall not be responsible for any misconduct or negligence solely attributable to the acts or omissions of the Servicer in its capacity as Servicer or custodian.
(vii) To Subsequent to the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf sale of the Trust Fund. The Trustee shall sign on behalf of Receivables by the Trust Fund and deliver Depositor to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesTrustee, the Trustee shall not accept any contribution have no duty of assets independent inquiry, except as may be required by Section 15.01, and the Trustee may rely upon the representations and warranties and covenants of the Depositor and the Servicer contained in this Agreement with respect to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of Receivables and the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Receivable Files.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Uacsc 1999 a Auto Trust), Pooling and Servicing Agreement (Uacsc 1996-D Auto Trust), Pooling and Servicing Agreement (Bay View Securitization Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 and the Trustee shall have no responsibility to ascertain or confirm the genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counsel;
(iiiA) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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;
(B) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; and
(C) provided that subject to the foregoing clause (A), nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Neither the Trustee nor any of its directors, officers, employees, Affiliates, agents or "control" persons within the meaning of the Act shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee 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 or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% (or such other percentage as is specified herein) of the Percentage Interests of any Class evidencing, as to such affected Class, Percentage Interests, aggregating not less than 50%; 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 so proceedingtaking any such action. The reasonable expense of every such examination investigation shall be paid by the Master Servicer or the Special Servicer, as applicable, if an Event of Default shall have occurred and is continuingbe continuing relating to the Master Servicer, or the Special Servicer, respectively and if such investigation results from such Event of Default, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys but shall not be relieved of its obligations hereunder; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunderFor purposes of this Agreement, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes shall have notice of signing any Tax Returns required to be filed on behalf an event only when a Responsible Officer of the Trust Fund. The Trustee shall sign on behalf has received notice of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsevent.
(b) Following the issuance of the CertificatesStart-up Day, the Trustee shall not not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it the Trustee shall have obtained or been furnished with received an Opinion of Counsel, which shall not Counsel (the costs of obtaining such opinion to be a cost of borne by the Trustee or the Trust Fund, Person requesting such contribution) to the effect that the inclusion of such contribution assets in the Trust Fund will not (i) cause any portion of the applicable Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or subject the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(iic) cause All rights of action under this Agreement or under any of the Trust Fund to 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 other 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. The Trustee shall have no duty to conduct any federal tax affirmative investigation as a result of such contribution (including to the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2006-Gg8), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2006-Gg8), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2007-Gg10)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may rely rely, and shall be protected in acting or refraining from acting upon in reliance, on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller or the Master Servicer, certificate any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 or accountants, and the written any advice of such counsel and or accountants or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred with respect to the Trustee, the Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any agent to perform its custodial functions with respect to the Mortgage Files or any paying agent to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer, which consent will not be unreasonably withheld or delayed. The Trustee shall be not liable or responsible for the misconduct or negligence of any of the Trustee's 108 agents or attorneys or a custodian or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized Trustee deem the nature of any action required on its part, other than a payment or transfer under Sections 4.02(d), 4.03(d), 4.04(d) and 4.05 hereof, to be unclear, the Code and Trustee may require prior to such action that it be provided by the regulations promulgated thereunder, each Holder Depositor with reasonable further instructions; the right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept be accountable for other than its negligence or willful misconduct in the performance of any contribution of assets to the Trust Fund unless such act;
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost required to give any bond or surety with respect to the execution of the Trustee trust created hereby or the Trust Fundpowers granted hereunder, except as provided in Section 9.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the Code)eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bsabs 2005-1), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Trust 2005-2), Pooling and Servicing Agreement (Bsabs 2005-1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(ia) The Trustee may rely upon and shall be protected in acting or refraining from acting in reliance upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counseltherewith;
(iiic) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notice pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Office of the Trustee's corporate trust department has actual knowledge (which has not been cured waived or waivedcured), 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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceeding. The Agreement reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf not be required to give any bond or surety with respect to the execution of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee trust created hereby or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)powers granted hereunder.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Icifc Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Servicer Event of Default hereunder and after the curing or waiver of all Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents accountants or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder; and
(vii) To The Trustee shall have no obligation to invest and reinvest any cash held in the extent authorized under absence of timely and specific written investment direction from the Code and Servicer or the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes Depositor. In no event shall the Trustee to be its attorney-in-fact liable for purposes the selection of signing any Tax Returns required to be filed on behalf of the Trust Fundinvestments or for investment losses incurred thereon. The Trustee shall sign on behalf have no liability in respect of losses incurred as a result of the Trust Fund and deliver liquidation of any investment incurred as a result of the liquidation of any investment prior to its stated maturity or the Servicer in a timely manner any Tax Returns prepared by or on behalf failure of the Servicer that or the Trustee is required Depositor to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsprovide timely written investment direction.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution of assets to be brought in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost name of the Trustee or for the Trust Fundbenefit of all the Holders of such Certificates, subject to the effect that provisions of this Agreement. In order to comply with its duties under the U.S.A. Patriot Act, the Trustee shall obtain and verify certain information and documentation from the other parties hereto including but not limited to such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)parties’ name, address, and other identifying information.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2005-A), Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2005-A), Pooling and Servicing Agreement (New Century Home Equity Loan Trust, Series 2005-C)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing OfficerOfficers, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver waiving of all Events of Default which that 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%25% of the Voting Interests allocated to each Class of Certificates; 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 so proceeding. The taking any such action; the reasonable expense of every such examination investigation shall be paid by the Master Servicer in the event that such investigation relates to an Event of Default by the Master Servicer, if an Event of Default by the Master Servicer shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesaffiliates, agents or attorneys;
(vii) the Trustee shall not 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; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to shall not be its attorney-in-fact liable for purposes any loss on any investment of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer funds pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel counsel, and the written any advice of such counsel and any counsel, or 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement or any Enhancement Agreement, or to institute, conduct or defend any litigation hereunder or thereunder or in relation hereto to this Agreement or any Enhancement Agreement or institute or conduct any proceeding (including, without limitation, any arbitration or mediation provided for under Section 2.12), at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement or any Enhancement Agreement, unless such Certificateholders (in all cases other than those specified in Section 15.02) or the Servicer (in cases specified in Section 15.02) shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waived), 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 its exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing more than 25% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such matters that do not relate to all Series, 25% of the aggregate unpaid principal amount of the Investor Certificates of any Class evidencing, as all Series to which such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationmatters relate);
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder; provided, however, that the Trustee shall not hold any Eligible Investment through an agent or nominee except as expressly permitted by Section 4.02; and
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(bSection 11.01(a) Following the issuance of the Certificateshereof, the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee Receivables or the Trust FundAccounts for the purpose of establishing the presence or absence of defects, to the effect that such contribution will not (i) cause compliance by each Transferor with its representations and warranties or for any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)other purpose.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Capital One Master Trust), Pooling and Servicing Agreement (Capital One Master Trust), Pooling and Servicing Agreement (Capital One Master Trust)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for all costs, liabilities and expenses incurred by it in connection with its signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (GMACM Mortgage Loan Trust 2005-Ar2), Pooling and Servicing Agreement (GMACM Mortgage Pass-Through Certificates Series 2004-Ar2), Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Ar1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the written any advice of such counsel and any or 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall not be under no any obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, Certificateholders or the NIMS Insurer pursuant to the provisions of this Agreement, unless such Certificateholders or the NIMS Insurer shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the right of the Trustee of the obligation, upon the occurrence of an Event of Default (which has to perform any discretionary act enumerated in this Agreement shall not been cured or waived), to exercise such of the rights and powers vested in it by this Agreementbe construed as a duty, and to use the same degree of care and skill in their exercise as a prudent investor would exercise Trustee shall not be answerable for other than its negligence or use under the circumstances willful misconduct in the conduct performance of any such investor's own affairsact;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an a Servicer Event of Default hereunder Termination and after the curing or waiver of all Servicer Events of Default Termination 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 documentdocuments, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Certificateholders or the NIMS Insurer; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerMaster Servicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigationMaster Servicer upon demand. Nothing in this clause (v) shall derogate from the obligation of the Master Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors;
(vi) The the Trustee shall not be accountable, have any liability or make any representation as to any acts or omissions hereunder of the Master Servicer until such time as the Trustee may be required to act as Master Servicer pursuant to Section 7.02;
(vii) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed by it with due care; and
(viiviii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund construed as a duty, and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be answerable for other than its negligence or willful misconduct in the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result performance of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)act.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2004-Opt2), Pooling and Servicing Agreement (Asset Backed Funding Corp. ABFC Asset Backed Certificates Series 2004-Opt3), Pooling and Servicing Agreement (Asset-Backed Funding Corp. ABFC Asset Backed Certificates, Series 2004-Opt5)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(ia) The Trustee may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iiic) 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 or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) 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;
(ve) Prior to the occurrence of an Event of Default hereunder hereunder, and after the curing or waiver 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To -in-fact, provided that the extent authorized under the Code and the regulations promulgated thereunder, each Holder use of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its any such agent or attorney-in-fact for purposes shall not relieve the Trustee from any of signing any Tax Returns required to be filed on behalf of its obligations hereunder, and the Trust Fund. The Trustee shall sign on behalf remain responsible for all acts and omissions of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors agent or omissions.attorney-in-fact;
(bg) Following the issuance of the CertificatesFor all purposes under this Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)h) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Master Servicer, the Special Servicer or the Trust FundREMIC Administrator (unless the Trustee is acting as Master Servicer, to Special Servicer or REMIC Administrator, as the effect that such contribution will not (icase may be) cause or for any portion act or omission of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding Depositor or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Mortgage Loan Seller.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certificates Series 2003-1), Pooling and Servicing Agreement (Commercial Mortgage Pass Thru Certs Series 2001-3), Pooling and Servicing Agreement (Banc of Amercia Com Mort Pas Thru Cer Series 2000-2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller, certificate the Depositor or any Servicer, any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;:
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event a Servicer Default of Default which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, nominees, custodians, agents or attorneys. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee's agents or attorneys or paying agent appointed hereunder by the Trustee with due care;
(vii) Should the Trustee deem the nature of any action required on its part to be unclear, the Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder;
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of this Agreement; and
(viix) To The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered or served upon it by the extent authorized under parties as a consequence of the Code and assignment of any Mortgage Loan hereunder; provided, however that the regulations promulgated thereunderTrustee shall promptly remit to the related Servicer upon receipt any such complaint, each Holder claim, demand, notice or other document (i) which is delivered to the Trustee at is Corporate Trust Office, (ii) of which a Class R Certificate hereby irrevocably appoints and authorizes Responsible Officer has actual knowledge or (iii) which contains information sufficient to permit the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in make a timely manner any Tax Returns prepared by or on behalf of the Servicer determination that the Trustee real property to which such document relates is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsa Mortgaged Property.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Mortgage Pass-Through Certificates Series 2004-Ap1), Pooling and Servicing Agreement (Nomura Asset Acceptance Corp), Pooling and Servicing Agreement (Nomura Asset Acc Corp Alter Ln Tr Ser 2003-A3)
Certain Matters Affecting the Trustee. Except for its own gross negligence, reckless disregard of its duties, bad faith or misconduct:
(a) Except as otherwise provided in Section 8.01:
(i) The the Trustee may rely on and shall be protected from liability to the Issuer and the Noteholders in acting on, or in refraining from acting upon in accord with, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, conversation, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed signed, sent or presented made by the proper party Person or partiesPersons;
(iib) The the Trustee may consult with counsel counsel, and the written any advice of such counsel and any Opinion of Counsel (including without limitation counsel to the Issuer or the Servicer) shall be full and complete authorization and protection from liability to the Issuer and the Noteholders in respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion opinion of Counselcounsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Indenture, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the CertificateholdersNoteholders, pursuant to the provisions of this AgreementIndenture, unless such Certificateholders Noteholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event any Servicer Default of Default which a Responsible Officer of the Trustee shall have actual knowledge or have received notice (which has not been cured or waivedcured), to exercise such of the rights and powers vested in it by this AgreementIndenture, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(ivd) The neither the Trustee nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall not be personally liable for any action taken, suffered or omitted to be taken by it the Trustee or such Person in good faith and believed by it such Person to be authorized or within the discretion or rights or powers conferred upon it by this AgreementIndenture, nor for any action taken or omitted to be taken by any other party hereto;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any Monthly Servicing Report, any other report or statement delivered to the Trustee by the Servicer, resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Majority Holders; 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 AgreementIndenture, the Trustee may require reasonable indemnity satisfactory to the Trustee against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vif) The subject to Section 3.6, the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesSection 13.1(b), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Pledged Loans for the purpose of establishing the presence or absence of defects, the compliance by the Servicer or the Issuer with their respective representations and warranties or for any other purpose;
(subject h) the right of the Trustee to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which perform any discretionary act enumerated in this Indenture shall not be construed as a cost of duty, and the Trustee or shall not be answerable for the Trust Fund, to the effect that performance of such contribution will not act; and
(i) cause the Trustee shall not be required to give any portion bond or surety in respect of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)powers granted hereunder.
Appears in 3 contracts
Samples: Indenture and Servicing Agreement (Wyndham Worldwide Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp), Indenture and Servicing Agreement (Wyndham Worldwide Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.015.01:
(i) The the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counseltherewith;
(iii) The except for the duties and obligations of the Trustee expressly created by this Agreement, 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, or if such request or direction is in conflict with any rule of law or 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; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their its exercise of rights and remedies hereunder on behalf of Certificateholders as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys;
(v) the Trustee shall not be personally liable for any loss resulting from the investment of funds held in the Certificate Account pursuant to Section 3.03; and
(viivi) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept be deemed to have notice or knowledge of any contribution of assets matter unless a Responsible Officer assigned to and working in the Corporate Trust Fund Office has actual knowledge thereof or unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of written notice thereof is received by the Trustee at the Corporate Trust Office and such notice references the Certificates generally or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 3 contracts
Samples: Deposit Trust Agreement (Goldman Sachs Asset Backed Securities Corp), Trust Agreement (Ace Securities Corp), Deposit Trust Agreement (Gs Mortgage Securities Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely conclusively upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers’ Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable it security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense expense, or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents custodians, agents nominees or attorneys; andattorneys and shall not be responsible for any willful misconduct or negligence of such agents, custodians, nominees or attorneys (as long as such agents, custodians, nominees or attorneys are appointed with due and proper care);
(vii) To Except as otherwise expressly provided herein, none of the extent authorized under the Code and the regulations promulgated thereunder, each Holder provisions of a Class R Certificate hereby irrevocably appoints and authorizes this Agreement shall require the Trustee to be expend or risk its attorney-in-fact own funds or otherwise to incur any liability, financial or otherwise, 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 purposes believing that repayment of signing any Tax Returns required such funds or indemnity satisfactory to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund it against such risk or liability is not assured to it (not including expenses, disbursements and deliver to the Servicer in a timely manner any Tax Returns prepared by advances incurred or on behalf of the Servicer that the Trustee is required to sign as determined made by the Servicer pursuant to applicable federalTrustee, state or local tax lawsincluding the compensation and the expenses and disbursements of its agents and counsel, provided that in the Servicer shall indemnify ordinary course of its performance in accordance with the Trustee for signing any such Tax Returns that contain errors or omissionsprovisions of this Agreement).
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He8), Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He6), Pooling and Servicing Agreement (Asset Backed Securities Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller, certificate the Depositor or the Servicer, any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;:
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event a Servicer Default of Default which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, nominees, custodians, agents or attorneys. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee's agents or attorneys or paying agent appointed hereunder by the Trustee with due care;
(vii) Should the Trustee deem the nature of any action required on its part to be unclear, the Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder;
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of this Agreement; and
(viix) To The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered or served upon it by the extent authorized under parties as a consequence of the Code and assignment of any Mortgage Loan hereunder; provided, however that the regulations promulgated thereunderTrustee shall promptly remit to the Servicer upon receipt any such complaint, each Holder claim, demand, notice or other document (i) which is delivered to the Trustee at is Corporate Trust Office, (ii) of which a Class R Certificate hereby irrevocably appoints and authorizes Responsible Officer has actual knowledge or (iii) which contains information sufficient to permit the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required make a determination that the real property to be filed on behalf of the Trust Fund. which such document relates is a Mortgaged Property.
(b) The Trustee shall sign is hereby directed by the Depositor to execute the Cap Contracts on behalf of the Trust Fund in the form presented to it by the Depositor and deliver shall have no responsibility for the contents of the Cap Contracts, including, without limitation, the representations and warranties contained therein. Any funds payable by the Trustee under the Cap Contracts at closing shall be paid by the Depositor. Notwithstanding anything to the Servicer contrary contained herein or in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesCap Contracts, the Trustee shall not accept be required to make any contribution of assets payments to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of counterparty under the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Cap Contracts.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (NAAC Alternative Loan Trust, Series 2004-Ar4), Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2004-Ar2), Pooling and Servicing Agreement (NAAC Alternative Loan Trust, Series 2004-Ar3)
Certain Matters Affecting the Trustee. (a) 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 Servicing Officer, 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 and 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 with such advice or Opinion of Counseltherewith;
(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 or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's 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 hereunder, and after the curing or waiver 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To -in-fact, provided that the extent authorized under the Code and the regulations promulgated thereunder, each Holder use of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its any such agent or attorney-in-fact for purposes shall not relieve the Trustee from any of signing any Tax Returns required to be filed on behalf of its obligations hereunder, and the Trust Fund. The Trustee shall sign on behalf remain responsible for all acts and omissions of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors agent or omissions.attorney-in-fact;
(bvii) Following the issuance of the CertificatesFor all purposes under this Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Master Servicer, the Special Servicer or the Trust FundREMIC Administrator (unless the Trustee is acting as Master Servicer, to Special Servicer or REMIC Administrator, as the effect that such contribution will not (icase may be) cause or for any portion act or omission of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding Depositor or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Mortgage Loan Seller.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2), Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2), Pooling and Servicing Agreement (Nationslink Funding Corp 1999-LTL-1 Commer Loan Pas THR Cer)
Certain Matters Affecting the Trustee. (a) Except as otherwise ------------------------------------- provided in Section 8.01:11.01: -------------
(ia) The Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accordance with, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement or any Supplement by the proper party or parties;.
(iib) The Trustee may consult with counsel and other experts deemed appropriate by the written Trustee and any advice of from such counsel and any or Opinion of Counsel or written advice from such other experts 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 with such advice or Opinion of Counsel;.
(iiic) The Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement or any Supplement, or to institute, conduct or defend any litigation hereunder or in relation hereto or any Supplement, at the request, order or direction of any of the CertificateholdersPerson or Persons, pursuant to the provisions of this AgreementAgreement or any Supplement, unless such Certificateholders Person or Persons shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of a Servicer Default (which has not been cured or waived)cured) of which a Responsible Officer has knowledge, to exercise such of the rights and powers vested in it by this AgreementAgreement or any Supplement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorprudent person's own affairs;.
(ivd) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;Agreement or any Supplement.
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the The Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by a Control Party or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Invested Amount of any Class evidencing, as to Series which could be adversely affected if the Trustee does not perform such Class, Percentage Interests, aggregating not less than 50%acts; 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 isshall be, 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 cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Servicer upon demand.
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code attorneys or custodians, and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept be responsible for any contribution misconduct or negligence on the part of assets to any such agent, attorney or custodian appointed with due care by it hereunder.
(g) Except as may be required by Section 11.01(a) hereof, the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which Trustee ---------------- shall not be a cost required to make any initial or periodic examination of any documents or records related to the Receivables for the purpose of establishing the presence or absence of defects, the compliance by the Transferor or the Servicer with their representations and warranties or for any other purpose.
(h) The right of the Trustee to perform any discretionary act enumerated in this Agreement or any Supplement shall not be construed as a duty, and the Trust Fund, to Trustee shall not be answerable for other than its negligence or willful misconduct in the effect that performance of any such contribution will not act.
(i) cause The Trustee shall not be personally liable for any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding action taken, suffered or (ii) cause the Trust Fund omitted by it in good faith and believed by it to be subject to authorized or within the discretion or rights or powers conferred upon it by this Agreement or any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Supplement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Safeguard Scientifics Inc Et Al), Pooling and Servicing Agreement (Compucom Systems Inc), Pooling and Servicing Agreement (Compucom Systems Inc)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any assignment of Receivables in Additional Accounts, the initial report, the monthly Servicer’s certificate, the annual Servicer’s certificate, the monthly payment instructions and notification to the Trustee, the monthly Certificateholder’s statement, any resolution, Officer's ’s Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel (and upon the written advice of such counsel counsel, the Trustee may consult with investment banking firms, accounting firms and other experts), 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement or any Credit Enhancement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, including acting as a Requesting Party under Section 2.09 hereof, at the request, order or direction of any of the CertificateholdersCertificateholders or any Credit Enhancement Provider, pursuant to the provisions of this Agreement, unless such Certificateholders or Credit Enhancement Provider shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waivedcured), to exercise such of the rights and powers vested in it by this AgreementAgreement and any Credit Enhancement, and to use the same degree of care and skill in their its exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any assignment of Receivables in Additional Accounts, the initial report, the monthly Servicer’s certificate, the annual Servicer’s certificate, the monthly payment instructions and notification to the Trustee, the monthly Certificateholder’s statement, the Asset Representation Reviewer’s final report setting out the findings of its Asset Representations Review, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Investor Interest of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationSeries;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatessubsection 11.01(a), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund Receivables or the Accounts for the purpose of establishing the presence or absence of defects, the compliance by the Transferor with its representations and warranties or for any other purpose;
(h) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate; and
(subject to Section 10.01(f)i) it shall have obtained or been furnished with an Opinion of Counsel, which the Trustee shall not be deemed to know of any default or other fact upon the occurrence of which it might be required to take action hereunder unless a cost Responsible Officer of the Trustee has actual knowledge thereof or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)has received written notice thereof.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Cabela's Master Credit Card Trust), Pooling and Servicing Agreement (Cabela's Master Credit Card Trust), Pooling and Servicing Agreement (Cabela's Master Credit Card Trust)
Certain Matters Affecting the Trustee. (a) 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 Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(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 (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's 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 or waiver of all 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 so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 from such requesting Holders against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationHolders;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, that the appointment of such agents or attorneys shall not relieve the Trustee of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to Default 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Servicer or the Trust FundSpecial Servicer (unless the Trustee is acting as Servicer or Special Servicer, to as the effect that such contribution will not (icase may be in which case the Trustee shall only be responsible for its own actions as Servicer or Special Servicer) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C2), Pooling and Servicing Agreement (J.P.Morgan Chase Commercial Mortgage Securities Series 2004-Cibc9)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.1:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accordance with, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel and the written any advice of such from counsel and any or 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the CertificateholdersNoteholders or the Holder of the Transferor Interest or any Enhancement Provider, pursuant to the provisions of this Agreement, unless such Certificateholders Holders or such Enhancement Provider shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waived)cured) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this AgreementAgreement or any Enhancement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Certificates a principal amount of Notes aggregating more than 50% of the Principal Amount of any Class evidencingSeries, as to such Class, Percentage Interests, aggregating not less than 50%; 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 isshall be, in the opinion sole discretion 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 satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian or nominee, and the Trustee shall not be responsible for the supervision of or any misconduct or negligence on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatessubsection 11.1(a), the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Included Leases or the related Equipment for the purpose of establishing the presence or absence of defects, the compliance by the Transferor with its representations and warranties or for any other purpose; and
(subject h) the right of the Trustee to Section 10.01(f)) it shall have obtained perform any discretionary act enumerated in this Agreement or been furnished with an Opinion of Counsel, which any Supplement shall not be construed as a cost of duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the Trust Fund, to the effect that performance of any such contribution will not act.
(i) cause any portion of in the applicable REMIC event that the Trustee is the Paying Agent, Transfer Agent or Registrar, the rights and protections afforded to fail the Trustee hereunder shall also be afforded to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of Trustee acting in such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)other capacities.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement and Indenture of Trust (PLM International Inc), Pooling and Servicing Agreement and Indenture of Trust (American Finance Group Inc /De/)
Certain Matters Affecting the Trustee. (a) 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 Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisalAppraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The Trustee shall not 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 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 (which has not been cured or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's 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 or waiver of all 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 so to do so by Holders of Certificates entitled to at least 50% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 from such requesting Holders against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such reasonable examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationHolders;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andprovided, however, the appointment of such agents or attorneys shall not relieve the Trustee of its duties or obligations hereunder;
(vii) To the extent authorized For all purposes under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesthis Agreement, the Trustee shall not accept be deemed to have notice of any contribution Event of assets to Default 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 Fund unless Office, and such notice references the Certificates or this Agreement; and
(subject to Section 10.01(f)viii) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost responsible for any act or omission of the Trustee Master Servicer or the Trust FundSpecial Servicer (unless the Trustee is acting as the Master Servicer or as a Special Servicer, to as the effect that such contribution will not (icase may be in which case the Trustee shall only be responsible for its own actions as the Master Servicer or Special Servicer) cause any portion or of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Depositor.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp11), Pooling and Servicing Agreement (J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-Ldp11)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.018.1:
(i) The the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's ’s Certificate, certificate of Servicing Officer, 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 may consult with counsel and the any written advice of such counsel and any or 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 with such written advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Administrative Agent Termination Event or Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, approval, bond or other paper or documentdocument believed by it to be genuine, unless requested in writing so to do so by Holders of Certificates the Required Percentage – Direction of Trustee of the aggregate Voting Rights of the affected Series (or Class or Classes within any Class evidencingsuch Series), as to such Class, Percentage Interests, aggregating not less than 50%specified by the applicable Series Supplement; 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 so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian and shall not be liable for such persons’ actions if it has selected such persons with reasonable care;
(vii) the Trustee shall not be personally liable for any loss resulting from the investment of funds held in any Certificate Account or Reserve Account at the direction of an Administrative Agent or the Depositor pursuant to Section 3.10;
(viii) any request or direction of the Depositor mentioned herein shall be sufficiently evidenced by a Depositor Request or Depositor Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(ix) whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate;
(x) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(xi) the Trustee shall not be deemed to have notice of any Administrative Agent Termination Event or Event of Default 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 of the Trustee, and such notice references the Underlying Securities and this Agreement;
(xii) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(xiii) the Trustee may request that the Depositor deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement; and
(viixiv) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes In no event shall the Trustee to be responsible or liable for any failure or delay in the performance of its attorney-in-fact for purposes obligations hereunder arising out of signing any Tax Returns required to be filed on behalf or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of the Trust Fund. The Trustee shall sign on behalf war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of the Trust Fund God, and deliver to the Servicer in a timely manner any Tax Returns prepared by interruptions, loss or on behalf malfunctions of the Servicer utilities, communications or computer (software and hardware) services; it being understood that the Trustee is required shall use reasonable efforts which are consistent with accepted practices in the banking industry to sign resume performance as determined by soon as practicable under the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionscircumstances.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 2 contracts
Samples: Trust Agreement (Fixed Income Trust for Prudential Financial, Inc. Notes, Series 2012-1), Trust Agreement (Fixed Income Trust for Goldman Sachs Subordinated Notes, Series 2011-1)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller, certificate the Depositor or the Servicer, any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;:
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event a Servicer Default of Default which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, nominees, custodians, agents or attorneys. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee's agents or attorneys or paying agent appointed hereunder by the Trustee with due care;
(vii) Should the Trustee deem the nature of any action required on its part to be unclear, the Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder;
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of this Agreement; and
(viix) To The Trustee shall have no duty hereunder with respect to any complaint, claim, demand, notice or other document it may receive or which may be alleged to have been delivered or served upon it by the extent authorized under parties as a consequence of the Code and assignment of any Mortgage Loan hereunder; provided, however that the regulations promulgated thereunderTrustee shall promptly remit to the Servicer upon receipt any such complaint, each Holder claim, demand, notice or other document (i) which is delivered to the Trustee at is Corporate Trust Office, (ii) of which a Class R Certificate hereby irrevocably appoints and authorizes Responsible Officer has actual knowledge or (iii) which contains information sufficient to permit the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in make a timely manner any Tax Returns prepared by or on behalf of the Servicer determination that the Trustee real property to which such document relates is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsa Mortgaged Property.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Nomura Asset Acc Corp ALT LN TR Ser 2004-Ap2), Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2004-Ar1)
Certain Matters Affecting the Trustee. (a) the Certificate Administrator and the Tax Administrator. Except as otherwise provided in Section 8.01:
(i) The Trustee the Trustee, the Certificate Administrator and the Tax Administrator, may each rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's ’s Certificate, certificate of Servicing Officer, 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 without error and to have been signed or presented by the proper party or parties;
(ii) The Trustee the Trustee, the Certificate Administrator and the Tax Administrator may each consult with counsel and the any written advice or opinion of such counsel and 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 with such advice or Opinion of Counseltherewith;
(iii) The 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 provided to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or therebythereby satisfactory to the Trustee, in its reasonable discretion; none of the Trustee, the Certificate Administrator or the Tax Administrator shall be required to expend or risk its own funds (except to pay expenses that could reasonably be expected to be incurred in connection with the performance of its normal duties) 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; provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured waived or waived)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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee none of the Trustee, the Certificate Administrator or the Tax Administrator 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 prior to the occurrence of an Event of Default hereunder and after the waiver or curing or waiver of all 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 so to do so by Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 an indemnity satisfactory to the Trustee, in its reasonable indemnity discretion, against such expense or liability as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The except as contemplated by Section 8.06, none of the Trustee, the Certificate Administrator or the Tax Administrator shall be required to give any bond or surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers hereunder or vested in it by this Agreement, and the Certificate Administrator and the Tax Administrator may each perform any of their respective duties hereunder hereunder, either directly or by or through Affiliates, the Custodian or other agents or attorneys-in-fact, provided that the use of the Custodian or other agents or attorneys-in-fact shall not be deemed to relieve the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, of any of its duties and obligations hereunder (except as expressly set forth herein);
(viii) none of the Trustee, the Certificate Administrator or the Tax Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless, in the case of the Trustee, it is acting as the Master Servicer or the Special Servicer, as the case may be) or of Trust Advisor or the Depositor;
(ix) neither the Trustee nor the Certificate Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer imposed under Article V under this Agreement or under applicable law with respect to any transfer of any Certificate or any interest therein, other than to require delivery of the certification(s) and/or Opinions of Counsel described in said Article applicable with respect to changes in registration or record ownership of Certificates in the Certificate Register and to examine the same to determine substantial compliance with the express requirements of this Agreement; and the Trustee and the Certificate Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depository or between or among Depository Participants or Certificate Owners of the Certificates, made in violation of applicable restrictions except for its failure to perform its express duties in connection with changes in registration or record ownership in the Certificate Register;
(x) in no event shall the Trustee or the Certificate Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action; and
(viixi) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost right of the Trustee or the Trust FundCertificate Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, to the effect that such contribution will not (i) cause any portion and none of the applicable REMIC to fail to qualify Trustee or the Certificate Administrator, as a REMIC at any time that any Certificates are outstanding applicable, shall be answerable for other than its negligence or (ii) cause willful misconduct in the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition performance of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)such act.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or 135 other paper or document 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the CertificateholdersCertificateholders or the Insurer, pursuant to the provisions of this Agreement, unless such Certificateholders or the Insurer shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or therebythereby and the Insurer has given its consent; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waivedcured), 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 investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by the Insurer or by the Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%50%with the written consent of the Insurer; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Master Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder or the Insurer requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys provided that the Trustee shall remain liable for any acts of such agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Master Servicer in a timely manner any Tax Returns prepared by or on behalf of the Master Servicer that the Trustee is required to sign as determined by the Master Servicer pursuant to applicable federal, state or local tax laws, provided that the Master Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesCertificates (and except as provided for in Section 2.04), the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, Counsel to the effect that such contribution will not (i) cause any portion of the applicable REMIC I, REMIC II, REMIC III or REMIC IV to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0120.2:
(i) The Trustee may request, and may rely and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond bond, or other paper or document (including the annual auditor's report and the letter of independent certified public accountants described in Section 13.11, the Servicer's Certificate described in Section 13.9, and the annual compliance statement described in Section 13.10) 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 any advice of such counsel and any or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder under the Agreement in good faith and in accordance with such advice or Opinion of Counsel;, which counsel has been selected by the Trustee with due care. A copy of any such Opinion of Counsel shall be provided to the Seller and the Servicer.
(iii) The Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement the Agreement, or to institute, conduct or defend any litigation hereunder under the Agreement or in relation hereto to the Agreement, at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this the Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses expenses, and liabilities which that may be incurred therein or thereby; nothing contained herein shallprovided, however, that the Trustee shall have the right to decline to follow any such request, order or direction if the Trustee, in accordance with an Opinion of Counsel determines that the action or proceeding may not lawfully be taken or if the Trustee in good faith determines that the action or proceeding so directed would involve it in personal liability or be unjustly prejudicial to the non-assenting Certificateholders; nothing contained in the Agreement, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default Servicing Termination (which has that shall not have been cured or waivedcured), to exercise such of the rights and powers vested in it by this the Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his or her own affairs;.
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this the Agreement;.
(v) Prior to the occurrence of an Event of Default hereunder Servicing Termination and after the curing or waiver of all Events of Default which Servicing Termination that 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 bond, or other paper or document, unless requested in writing so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%25% of the Pool Balance; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses expenses, or liabilities likely to be incurred by it in the making of such investigation isshall be, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this the Agreement, the Trustee may require reasonable indemnity against such expense cost, expense, or liability or payment of such expenses as a condition precedent to so proceeding. The reasonable expense of every such examination shall be paid by the ServicerServicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Servicer upon demand. Nothing in this clause (v) shall affect the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors.
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder under the Agreement either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunderattorneys or a custodian, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing which agents or attorneys shall have any Tax Returns required to be filed on behalf or all of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund rights, powers, duties and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost obligations of the Trustee or the Trust Fund, to the effect that conferred on them by such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)appointment.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Usaa Federal Savings Bank), Pooling and Servicing Agreement (Usaa Federal Savings Bank)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Master Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Master Servicer Event of Default hereunder and after the curing or waiver of all Master Servicer 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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, Trustee not reasonably assured to the Trustee by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense or liability from such Certificateholders as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents accountants or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder; and
(vii) To The Trustee shall have no obligation to invest and reinvest any cash held in the extent authorized under absence of timely and specific written investment direction from the Code and Master Servicer or the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes Depositor. In no event shall the Trustee to be its attorney-in-fact liable for purposes the selection of signing any Tax Returns required to be filed on behalf of the Trust Fundinvestments or for investment losses incurred thereon. The Trustee shall sign have no liability in respect of losses incurred as a result of the liquidation of any investment incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Master Servicer or the Depositor to provide timely written investment direction.
(b) 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
(c) The Trustee is hereby directed by the Depositor to execute and deliver the Cap Contracts on behalf of the Trust Fund and deliver in the respective forms presented to it by the Depositor. Every provision of this Agreement relating to the Servicer in a timely manner any Tax Returns prepared by conduct or on behalf affecting the liability of the Servicer that the Trustee is required or affording protection to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets apply to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost Trustee's execution of the Trustee or Cap Contracts, and the Trust Fund, to the effect that such contribution will not (i) cause any portion performance of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result its duties and satisfaction of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)its obligations thereunder.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2003-5), Pooling and Servicing Agreement (New Century Mortgage Sec Home Equity Loan Ser 2003-4)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iiparties;(b) The the Trustee may consult with counsel counsel, and the written any advice of such counsel and any counsel, or 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 with such advice or Opinion of Counsel;
(iiib) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement or any Enhancement Agreement, or to institute, conduct or defend any litigation hereunder or thereunder or in relation hereto to this Agreement or any Enhancement Agreement, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement or any Enhancement 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; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waived), 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 its exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivc) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(vd) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing more than 25% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such matters that do not relate to all Series, 25% of the aggregate unpaid principal amount of the Investor Certificates of any Class evidencing, as all Series to which such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationmatters relate);
(vie) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder; and
(viif) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(bsubsection 11.01(a) Following the issuance of the Certificateshereof, the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee Receivables or the Trust FundAccounts for the purpose of establishing the presence or absence of defects, to the effect that such contribution will not (i) cause compliance by each Transferor with its representations and warranties or for any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)other purpose.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Providian Master Trust), Pooling and Servicing Agreement (Providian Master Trust)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's ’s Certificate, certificate of auditors, Servicing Officer, certificate of auditors Officers or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) The the Trustee may consult with counsel counsel, financial advisors or accountants and the written any advice of such counsel and Persons 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 with such advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's person’s own affairs;
(iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which that 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less evidencing greater than 50%% of the Voting Rights allocated to each Class of Certificates; 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 so proceeding. The taking any such action; the reasonable expense of every such examination investigation shall be paid (A) by the Master Servicer or by the applicable Servicer in the event that such investigation relates to an Event of Default by the Master Servicer or by such Servicer, respectively, if an Event of Default by the Master Servicer or by such Servicer shall have occurred and is continuing, and (B) otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care;
(vii) the Trustee shall not 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) the Trustee shall not be liable for any loss on any investment of funds pursuant to this Agreement; and
(viiix) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of construed as a duty, and the Trust Fund. The Trustee shall sign on behalf not be answerable for other than its negligence or willful misconduct in the performance of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsact.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (CSAB Mortgage-Backed Trust 2006-3), Pooling and Servicing Agreement (CSAB Mortgage-Backed Trust 2006-4)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or therebythereby has given its consent; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by the Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 5051%; providedPROVIDED, howeverHOWEVER, 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 102 expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Master Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys provided that the Trustee shall remain liable for any acts of such Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder The right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of construed as a duty, and the Trust Fund. The Trustee shall sign on behalf not be answerable for other than its negligence or willful misconduct in the performance of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsact.
(b) It is intended that the Trust Fund formed hereunder shall constitute, and that the affairs of the Trust Fund shall be conducted so as to qualify the Trust Fund as three REMICs as defined in and in accordance with the REMIC Provisions. In furtherance of such intention the Trustee shall:
(i) to the extent that the affairs of the Trust are within its control, conduct such affairs of the Trust at all times that any Certificates are outstanding so as to maintain the status of the Trust as three REMICs under the REMIC Provisions and any other applicable federal, state and local laws;
(ii) not knowingly or intentionally take any action or omit to take any action that would cause the termination of the REMIC status of REMIC I, REMIC II or REMIC III;
(iii) pay the amount of any and all federal, state and local taxes, prohibited transaction taxes as defined in Section 860F of the Code, other than any amount due as a result of a transfer or attempted or purported transfer in violation of Section 5.02(f), imposed on REMIC I, REMIC II or REMIC III when and as the same shall be due and payable (but such obligation shall not prevent the Trustee or any other appropriate Person from contesting any such tax in appropriate proceedings and shall not prevent the Trustee from withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The Trustee shall be entitled to reimbursement in accordance with Section 8.05; and
(iv) Following the issuance of the CertificatesClosing Date, and except as otherwise provided in this Agreement, the Trustee shall not knowingly accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished provided with an Opinion of Counsel, which shall not be a cost Counsel at the expense of the Trustee or the Trust Fund, party delivering such assets acceptable to it to the effect that the inclusion of such contribution assets in the Trust will not (i) cause any portion of the applicable REMIC Trust to fail to qualify as a REMIC three REMICs at any time that any Certificates are outstanding or (ii) cause subject the Trust Fund to be subject to any federal tax as a result under the REMIC Provisions or other applicable provisions of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)federal, state and local law or ordinances.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WMC Secured Assets Corp WMC Mort Pass THR Cert Ser 1999-A), Pooling and Servicing Agreement (WMC Secured Assets Corp WMC Mort Pass THR Cert Ser 2000-A)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 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 with such advice or Opinion of Counsel;
(iiiA) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; (B) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; and (C) provided, that subject to the foregoing clause (A), nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Neither the Trustee nor any of its directors, officers, employees, Affiliates, agents or "control" persons within the meaning of the Act shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee 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 or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% (or such other percentage as is specified herein) of the Percentage Interests of any Class evidencing, as to such affected Class, Percentage Interests, aggregating not less than 50%; 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 so proceedingtaking any such action. The reasonable expense of every such examination investigation shall be paid by the Master Servicer or the Special Servicer, as applicable, if an Event of Default shall have occurred and is continuingbe continuing relating to the Master Servicer, or the Special Servicer, respectively, and otherwise by the Certificateholder Certificateholders requesting the investigation;; and
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder attorneys but shall not be relieved of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsobligations hereunder.
(b) Following the issuance of the CertificatesStart-up Day, the Trustee shall not not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it the Trustee shall have obtained or been furnished with received an Opinion of Counsel, which shall not Counsel (the costs of obtaining such opinion to be a cost of borne by the Trustee or the Trust Fund, Person requesting such contribution) to the effect that the inclusion of such contribution assets in the Trust Fund will not (i) cause any portion of the applicable Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or subject any of the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(iic) cause All rights of action under this Agreement or under any of the Trust Fund to 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 other 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. The Trustee shall have no duty to conduct any federal tax affirmative investigation as a result of such contribution (including to the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Seller pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Cert Series 1998 Gl Ii), Pooling and Servicing Agreement (Commercial Mortgage Pass Through Cert Series 1998 Gl Ii)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.0111.01:
(ia) The the Trustee may conclusively rely on and shall be fully protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it in good faith to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel and the written advice and, as a condition to taking, suffering or omitting to take any action, may demand an Opinion of such counsel Counsel, and any Opinion advice or opinion of Counsel counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion opinion of Counselcounsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; Pooling and Servicing Agreement provided, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of a Servicer Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his or her own affairs;
(ivd) The subject to Section 11.01(c), the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, approval, bond or other paper or document, unless requested in writing so to do by Holders of Certificates Certificateholders of any Class evidencing, as to such Class, Percentage Interests, aggregating outstanding Series evidencing not less than 50%; provided, however, that if the payment within a reasonable time to the Trustee 20% of the costsInvested Amount for such Series or, expenses or liabilities likely to be incurred by it if so specified 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 Agreementany Supplement, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationEnhancement Provider therefor;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; andattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of any such agent, attorney or custodian appointed with due care by it hereunder;
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns except as required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the CertificatesSection 11.01, the Trustee shall not accept be required to make any contribution initial or periodic examination of assets any documents or records related to the Trust Fund unless Receivables for the purpose of establishing the presence or absence of defects, the compliance by the Transferor with its representations and warranties or for any other purpose; and
(subject h) nothing in this Agreement shall be construed to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost require the Trustee to monitor the performance of the Trustee Servicer or the Trust Fund, to the effect that such contribution will not (i) cause any portion act as a guarantor of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Servicer's performance.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Muehlstein Holding Corp), Pooling and Servicing Agreement (Muehlstein Holding Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, resolution or certificate of Servicing Officerthe Seller or the Master Servicer, certificate any certificates of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 any advice of such counsel and or any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(iv) The Trustee shall not be personally liable in its individual capacity for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%; provided, however, 25% of the aggregate Voting Rights of the Certificates and provided 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 Trustee reasonably assured to the Trustee by the security afforded to it by the terms of this Agreement, the . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, however, that the Trustee may not appoint any paying agent to perform any paying agent functions under this Agreement without the express written consent of the Master Servicer, which consents will not be unreasonably withheld. The Trustee shall not be liable or responsible for the misconduct or negligence of any of the Trustee's agents or attorneys or paying agent appointed hereunder by the Trustee with due care and, when required, with the consent of the Master Servicer;
(vii) To Should the extent authorized under Trustee deem the Code and nature of any action required on its part to be unclear, the regulations promulgated thereunder, each Holder Trustee may require prior to such action that it be provided by the Depositor with reasonable further instructions; the right of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be accountable for other than its attorney-in-fact negligence or willful misconduct in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder, except as provided in Subsection 9.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of any Mortgage Loan by any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsthis Agreement.
(b) Following The Trustee is hereby directed by the issuance Depositor to execute and deliver the Derivative Administration Agreement (and any amendments or supplements to the Derivative Administration Agreement as may be requested by the Majority Class CE Certificateholder regarding the distributions to be made to it or its designees thereunder). Amounts payable by the Trustee on any Distribution Date to the Derivative Administrator shall be paid by the Trustee as provided herein. The Trustee in its individual capacity shall have no responsibility for any of the Certificatesundertakings, agreements or representations with respect to the Swap Agreement, the Yield Maintenance Agreement or the Derivative Administration Agreement, including, without limitation, for making any payments thereunder. It is acknowledged and agreed that the Person serving as Trustee hereunder shall also serve as Derivative Administrator under the Derivative Administration Agreement and act as Supplemental Interest Trust Trustee under the Swap Agreement and the Yield Maintenance Agreement. The Trustee, the Derivative Administrator and the Supplemental Interest Trust Trustee are hereby directed by the Depositor to execute and deliver the Derivative Administration Agreement (and any amendments or supplements to the Derivative Administration Agreement as may be requested by the Majority Class CE Certificateholder regarding the distributions to be made to it or its designees thereunder) and the Supplemental Interest Trust Trustee is hereby directed to execute and deliver the Swap Agreement and the Yield Maintenance Agreement, and to make the representations required therein. The Derivative Administrator shall not have any liability for any failure or delay in payments to the Trust which are required under the Derivative Administration Agreement where such failure or delay is due to the failure or delay of the Swap Provider or the Yield Maintenance Agreement Provider in making such payment to the Derivative Administrator. LaSalle Bank National Association in its individual capacity and as Derivative Administrator, the Trustee and the Supplemental Interest Trust Trustee shall not accept be entitled to be indemnified and held harmless by the Trust from and against any contribution and all losses, claims, expenses or other liabilities that arise by reason of assets or in connection with the performance or observance by each of the Derivative Administrator, the Trustee and the Supplemental Interest Trust Trustee of its duties or obligations under the Swap Agreement or the Derivative Administration Agreement, except to the extent that the same is due to the Derivative Administrator's, the Trustee's or the Supplemental Interest Trust Fund unless (subject Trustee's gross negligence, willful misconduct or fraud. Any Person appointed as successor trustee pursuant to Section 10.01(f)) it 9.09 shall have obtained or been furnished with an Opinion of Counsel, which shall not also be a cost of required to serve as successor Derivative Administrator and successor supplemental interest trust trustee under the Trustee or Swap Agreement and the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)Derivative Administration Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I LLC Trust 2006-Ec2), Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2006-He2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.018.1:
(i) The the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing Officer, 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 may consult with counsel and the any written advice of such counsel and any or 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 with such written advice or Opinion of Counsel;
(iii) The the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; PROVIDED, however, that nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Administrator Termination Event or Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor man would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
; (iv) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 2 contracts
Samples: Series Supplement (Structured Products Corp), Base Trust Agreement (Structured Products Corp)
Certain Matters Affecting the Trustee. (a) Except as ------------------------------------- otherwise provided in Section 8.01:11.1: ------------
(ia) The the Trustee may rely on and shall be protected in acting on, or in refraining from acting upon in accord with, any resolution, Officer's Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties;
(iib) The the Trustee may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of any Servicer Default (which has not been cured or waivedcured), 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 investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Investor Amount of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%; 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 so proceeding. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationSeries;
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneysattorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder; and
(viig) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to except as may be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatessubsection 11.1(a), the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which ------------------ shall not be a cost required to make any initial or periodic examination of any documents or records related to the Trustee Receivables or the Trust FundAccounts for the purpose of establishing the presence or absence of defects, to the effect that such contribution will not (i) cause compliance by Seller with its representations and warranties or for any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)other purpose.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (First Consumers Master Trust), Pooling and Servicing Agreement (First Consumers Master Trust)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document 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 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 with such advice or Opinion of Counsel;
(iiiA) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, 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; (B) the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any such act; and (C) provided, that subject to the foregoing clause (A), nothing contained herein shall, however, shall relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default (which has not been cured or waived)) of which a Responsible Officer of the Trustee has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Neither the Trustee nor any of its directors, officers, employees, Affiliates, agents or "control" persons within the meaning of the Act shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it the Trustee 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 or waiver of all Events of Default which may have occurred, the 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 so to do so by Holders of Certificates entitled to at least 25% (or such other percentage as is specified herein) of the Percentage Interests of any Class evidencing, as to such affected Class, Percentage Interests, aggregating not less than 50%; 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 so proceedingtaking any such action. The reasonable expense of every such examination investigation shall be paid by the Master Servicer or the Special Servicer, as applicable, if an Event of Default shall have occurred and is continuingbe continuing relating to the Master Servicer, or the Special Servicer, respectively, and otherwise by the Certificateholder Certificateholders requesting the investigation;; and
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder attorneys but shall not be relieved of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsobligations hereunder.
(b) Following the issuance of the CertificatesStart-up Day, the Trustee shall not not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it the Trustee shall have obtained or been furnished with received an Opinion of Counsel, which shall not Counsel (the costs of obtaining such opinion to be a cost of borne by the Trustee or the Trust Fund, Person requesting such contribution) to the effect that the inclusion of such contribution assets in the Trust Fund will not (i) cause any portion of either the applicable Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or subject either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.
(iic) cause All rights of action under this Agreement or under any of the Trust Fund to 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 other 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. The Trustee shall have no duty to conduct any federal tax affirmative investigation as a result of such contribution (including to the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by the Code)Depositor pursuant to this Agreement or the eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc), Pooling and Servicing Agreement (Morgan Stanley Cap I Inc Comm Mort Pass THR Cer Ser 1998 Xl2)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(ia) The the Trustee may request and rely upon, and shall be protected in acting or refraining from acting upon upon, any resolution, Officer's Certificate, certificate of Servicing OfficerCertificate, 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 the Trustee may consult with counsel and the any written advice of such counsel and any or 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 with such advice or Opinion of Counsel;
(iiic) The the Trustee shall be under no obligation to exercise any of the trusts rights or powers vested in it by this Agreement Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto hereto, at the request, order or direction of any of the Certificateholders, 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; nothing contained herein shall, however, relieve the Trustee of the obligationobligations, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge (which has not been cured or waivedcured), 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 investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior prior to the occurrence of an Event of Default hereunder of which a Responsible Officer of the Trustee has actual knowledge and after the curing or waiver of all 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 documentdocuments, unless requested in writing so to do so by Holders of Class A and Class M Certificates of any Class evidencing, as to such Class, Percentage Interests, aggregating evidencing not less than 50%51% of the aggregate Percentage Interests of the Class A and Class M Certificates; 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 cost, expense or liability as a condition to so such proceeding. The reasonable expense of every such examination shall be paid by the ServicerMaster Servicer or, if an Event of Default shall have occurred and is continuing, and otherwise paid by the Certificateholder requesting Trustee, shall be reimbursed by the investigation;Master Servicer upon demand. Nothing in this clause (e) shall derogate from the obligation of the Master Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors; and
(vif) The the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
attorneys or a custodian (vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer except that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to be responsible for selecting the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify Master Servicer as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Codecustodian and bailee).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (HFC Revolving Corp), Pooling and Servicing Agreement (HFC Revolving Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.019.01:
(ia) The Trustee may rely and shall be protected in acting or refraining from acting upon in reliance on any resolution, Officer's Certificate, certificate of a Servicing Officer, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(iib) The Trustee may consult with counsel and the written advice of such counsel and any Opinion of Counsel shall be full and complete authorization and protection in with respect of to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iiic) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notices pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing . Nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Trustee's corporate trust department has actual knowledge (which has not been cured or waivedcured), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise exercise, as a prudent investor person would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by Holders of Certificates of any Class evidencing, as to such Class, Percentage Interests, evidencing Fractional Undivided Interests aggregating not less than 50%; provided, however, [ ]% of the Trust Fund and provided 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 . The Trustee may require reasonable indemnity against such expense or liability as a condition to so proceedingtaking any such action. The reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunderprovided, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes however, that the Trustee may not appoint any agent to be perform its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf custodial or paying agent functions under this Agreement without the express written consent of the Trust FundMaster Servicer, which consent will not be unreasonably withheld. The Trustee shall sign on behalf not be liable or responsible for the misconduct or negligence of any of the Trust Fund and deliver to Trustee's agents or attorneys or a custodian or paying agent appointed hereunder by the Servicer in a timely manner any Tax Returns prepared by or on behalf Trustee with due care and, when required, with the consent of the Servicer that Master Servicer;
(g) Should the Trustee is deem the nature of any action required on its part, other than a payment or transfer under Section 4.02(b) or Section 4.03, to sign as determined be unclear, the Trustee may require prior to such action that it be provided by the Master Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify with reasonable further instructions;
(h) The right of the Trustee for signing to perform any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificatesdiscretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not accept be accountable for other than its negligence or willful misconduct in the performance of any contribution of assets to the Trust Fund unless such act;
(subject to Section 10.01(f)i) it shall have obtained or been furnished with an Opinion of Counsel, which The Trustee shall not be a cost required to give any bond or surety with respect to the execution of the Trustee trust created hereby or the Trust Fund, powers granted hereunder; and
(j) The Trustee shall have no duty to conduct any affirmative investigation as to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition occurrence of any federal tax on "prohibited transactions" imposed under Section 860F(a) condition requiring the repurchase of any Mortgage Loan by [ ] pursuant to this Agreement or the Code)eligibility of any Mortgage Loan for purposes of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp), Pooling and Servicing Agreement (Gs Mortgage Securities Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(ia) The Trustee may conclusively rely upon and shall be fully protected in acting or refraining from acting in reliance upon any resolution, Officer's Officers' Certificate, certificate of Servicing Officer, 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 may consult with counsel and the written advice of such counsel 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 with such advice or Opinion of Counseltherewith;
(iiic) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement Agreement, other than its obligation to give notice pursuant to this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Office of the Trustee's corporate trust department has actual knowledge (which has not been cured waived or waivedcured), 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 investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs;
(ivd) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(ve) Prior to the occurrence of an Event of Default hereunder and after the curing or waiver of all 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 so to do so by the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%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 so proceeding. The Agreement reasonable expense of every such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder Certificateholders requesting the investigation;
(vif) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliatesagents, agents nominees, custodians or attorneysattorneys appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed;
(g) The Trustee shall not be required to give any bond or surety with respect to the execution of the trust created hereby or the powers granted hereunder; and
(viih) To Whenever in the extent authorized under administration of the Code and the regulations promulgated thereunder, each Holder provisions of a Class R Certificate hereby irrevocably appoints and authorizes this Agreement the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be its attorney-in-fact for purposes taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of signing any Tax Returns required gross negligence or bad faith on the part of the Trustee, be deemed to be filed conclusively proved and established by a certificate signed and delivered to the Trustee and such certificate, in the absence of gross negligence or bad faith on behalf the part of the Trust Fund. The Trustee Trustee, shall sign on behalf of the Trust Fund and deliver be full warrant to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors action taken, suffered or omissionsomitted by it under the provisions of this Agreement upon the faith thereof.
(b) Following the issuance of the Certificates, the Trustee shall not accept any contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Certain Matters Affecting the Trustee. (a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of Servicing OfficerOfficers'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 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 with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under no any obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the CertificateholdersCertificateholders or the NIMS Insurer, pursuant to the provisions of this Agreement, unless such Certificateholders or the NIMS Insurer, as applicable, shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an a Master Servicer Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent investor person would exercise or use under the circumstances in the conduct of such investorperson's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an a Master Servicer Event of Default hereunder and after the curing or waiver of all Master Servicer 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 so to do so by the NIMS Insurer or the Holders of Certificates entitled to at least 25% of any Class evidencing, as to such Class, Percentage Interests, aggregating not less than 50%the Voting Rights; provided, 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 the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee Trustee, by the security afforded to it by the terms of this Agreementsuch Certificateholders, the Trustee may require reasonable indemnity against such expense expense, or liability from such Certificateholders or the NIMS Insurer, as applicable, as a condition to so proceeding. The reasonable expense of every taking any such examination shall be paid by the Servicer, if an Event of Default shall have occurred and is continuing, and otherwise by the Certificateholder requesting the investigationaction;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through Affiliates, agents or attorneys; provided, that the Trustee shall not be responsible for any negligence or willful misconduct on the part of the Custodian or any such agents or attorneys appointed by it with due care; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf not be personally liable for any loss resulting from the investment of funds held in the Collection Account at the direction of the Trust Fund and deliver to the Servicer in a timely manner any Tax Returns prepared by or on behalf of the Servicer that the Trustee is required to sign as determined by the Master Servicer pursuant to applicable federal, state or local tax laws, provided that the Servicer shall indemnify the Trustee for signing any such Tax Returns that contain errors or omissionsSection 3.12.
(b) Following the issuance 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 other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall not accept any contribution be brought in its name for the benefit of assets all the Holders of such Certificates, subject to the Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been furnished with an Opinion provisions of Counsel, which shall not be a cost of the Trustee or the Trust Fund, to the effect that such contribution will not (i) cause any portion of the applicable REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as a result of such contribution (including the imposition of any federal tax on "prohibited transactions" imposed under Section 860F(a) of the Code)this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mort Pas THR Cert Ser 2002-Nc1), Pooling and Servicing Agreement (Mort Asset Sec Transactions Inc Mastr as Bk Sec Tr 03 Nc1)
