Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in each by this Agreement, and 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. (B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents. 01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement. (C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that: (I) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements of this Agreement; (II) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; (IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and (V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it. (D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (RALI Series 2007-Qh8 Trust), Pooling and Servicing Agreement (RALI Series 2007-Qh8 Trust), Series Supplement to Pooling and Servicing Agreement (RALI Series 2007-Qh8 Trust)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp), Pooling and Servicing Agreement (Fremont Home Loan Trust 2006-A), Pooling and Servicing Agreement (Gs Mortgage Securities Corp Fremont Home Loan Trust 2004-A)
Duties of the Trustee. (A) For purposes of this Article VIII, references to "Trustee" shall be deemed to include LaSalle Bank National Association, in its capacity as Supplemental Interest Trust Trustee under this Agreement, the Cap Contract and the Swap Agreement, and in respect thereof the Supplemental Interest Trust Trustee shall have all of the rights, protections, immunities and benefits of the Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders, or may, proceed to protect and enforce its rights and the rights of the Certificateholders under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and take such status and avoiding such taxes are reasonably within further action as directed by the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge responsible for the acts or omissions of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company Servicer or any Certificateholder; and
(V) Except to the extent provided in Section 7.02Subservicer, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff1), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ff2), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2007-Ffa)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an a Master Servicer Event of Default and after the curing or waiver of all Events any such Master Servicer Event of Default which may have occurredDefault, undertake undertakes to perform such duties and only such duties as are specifically set forth in this the Trust Agreement. In case an Notwithstanding anything to the contrary herein, the appointment by the Trustee of Xxxxx Fargo Bank, N.A. as Securities Administrator to perform the duties and obligations specifically set forth in Sections 2.03, 3.01, 3.02, 3.03, 3.05, 4.01, 4.03, 4.04, 5.02, 5.03, 5.04, 5.08, 7.01, 7.02 and 10.03 hereof, and any other duties and obligations as may be set forth in a letter agreement between Xxxxx Fargo Bank, N.A. and the Trustee, shall not release the Trustee from its duty to perform such duties and obligations hereunder. During a Master Servicer Event of Default relating to the Trustee of which a Responsible Officer of the Trustee has occurred (which has not been cured or waived)notice, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, the Trust Agreement and 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.
(B) . The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments created by any Person other than itself and furnished to the Trustee it which are specifically required to be furnished pursuant to any provision of this the Trust Agreement, Custodial Agreement, Servicing Agreement, Sale Agreement or Assignment Agreement shall examine them to determine whether they conform to the requirements of this Agreement. The such agreement; provided, however, that the Trustee shall notify not be under any duty to recalculate, verify or recompute the Certificateholders of information provided to it hereunder by the Servicer or the Depositor. If any such documents which do instrument is found not materially to conform to the requirements of this Agreement such agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion take action as it deems appropriate to have the instrument corrected, and if the instrument is not corrected to its satisfaction, then it will provide notice thereof to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants other and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this the Trust Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ia) Prior to the occurrence of an any Master Servicer Event of Default, Default and after the curing or waiver of all of such Events of Default which may have occurredDefault, the respective duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreementthe Trust Agreement (including the obligation, if any, of the Trustee to enforce each Servicing Agreement against the related Servicer, each Custodial Agreement against the related Custodian, each Sale Agreement against the related Seller, each Assignment Agreement against GSMC and otherwise to act as owner under such agreements for the benefit of the Certificateholders), the Trustee shall not be liable except for the performance of such the respective duties and obligations as are specifically set forth in this the Trust Agreement, no implied covenants or obligations shall be read into this the Trust Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict that conform to the requirements of this the Trust Agreement;
(IIb) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible an Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(IIIc) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this the Trust Agreement;
(IVd) The Trustee shall not be charged with knowledge Any determination of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) negligence, bad faith, willful misconduct or breach of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer conduct of the Trustee assigned to shall be made only upon a finding that there is clear and working convincing evidence (and not upon the mere preponderance of evidence) thereof in the Corporate Trust Office obtains actual knowledge a proceeding before a court of such failure or event or competent jurisdiction in which the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholderhas had an opportunity to defend; and
(Ve) Except In no event shall the Trustee be held liable for the actions or omissions of any Master Servicer, Securities Administrator, Servicer or Custodian (excepting the Trustee’s own actions as Master Servicer, Securities Administrator, Servicer or Custodian). Prior to the extent provided in Section 7.02occurrence of any Event of Default and after the curing of all such Events of Default, other than those obligations assumed by the Trustee as successor Servicer under Article VII, no provision in this of the Trust Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee 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 itit unless such risk or liability relates to duties set forth herein.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 2 contracts
Samples: Master Servicing and Trust Agreement (GSR 2006-Ar2), Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2006-Ar1)
Duties of the Trustee. (Aa) The Trustee, prior to the occurrence of If an Event of Default and after known to the curing or waiver of all Events of Default which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default Trustee has occurred (which has not been cured or waived)and is continuing, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Indenture and 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.
(Bb) The Mexican Trustee upon receipt shall (i) confirm that the proceeds from the offering and sale of all resolutionsthe Notes are used to fund the purchase of the capped called transactions described in the Offering Memorandum and for general corporate purposes, certificates, statements, opinions, reports, documents, orders or other instruments furnished to (ii) cause the Trustee which are specifically required to be furnished pursuant to any provision registration of a certified copy of the public instrument containing the notarization of a Spanish version of this Agreement, shall examine them to determine whether they conform to Indenture with the requirements Public Registry of this Agreement. The Trustee shall notify Commerce and obtain the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement registration thereof in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion Issuer fails to the Master Servicer comply with its obligation to register such information public instrument as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions Section 4.02(e)(i), and (subject to Section 10.01(f)iii) to prevent exercise all rights and comply with all obligations set forth in the imposition of any federalLGTOC, state or local incomeincluding those set forth in Article 217 (Sections I, prohibited transactionV, contribution or other tax on the Trust Fund to the extent that maintaining such status VII and avoiding such taxes are reasonably within the control VIII) of the Trustee and are reasonably within the scope of their respective duties under this AgreementLGTOC.
(Cc) No provision of this Agreement shall be construed to relieve Except during the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(I) Prior to the occurrence continuance of an Event of Default, and after Default known to the curing or waiver of all such Events of Default which may have occurred, the Trustee:
(i) The duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, Indenture and the Trustee shall not be liable except for the performance of such need perform only those duties and obligations as that are specifically set forth in this Agreement, Indenture and no others and no implied covenants or obligations shall be read into this Agreement Indenture against the Trustee Trustee; and, in
(ii) In the absence of bad faith on the part of the Trusteeits part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementIndenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the form required by this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts purported to be stated therein).
(d) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (c) of this Section 7.01;
(IIii) The Trustee shall not be personally liable for an any error of judgment made in good faith by a Responsible Trust Officer or Responsible Officers of the Trustee Trustee, unless it shall be is proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(IIIiii) The Trustee shall not be personally liable with respect to any action taken, suffered it takes or omitted omits to be taken by it take in good faith in accordance with the a direction of Certificateholders of any Class holding Certificates which evidence, as received by it pursuant to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;Section 6.05.
(IVe) The Trustee shall not be charged with knowledge No provision of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement Indenture shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powersand powers hereunder, if the Trustee 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.
(Df) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (c), (d), and (e) of this Section 7.01.
(g) The Trustee shall timely pay, from its own funds, the amount of not be liable for interest on any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and money received by it except as the same shall be due and payable, (B) any tax on contributions to a REMIC after Trustee may agree with the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined Issuer. Money held in Section 860G(c) of the Code, but only if such taxes arise out of a breach trust by the Trustee of its obligations hereunder, which breach constitutes negligence need not be segregated from other funds or willful misconduct assets except to the extent required by law.
(h) The Trustee shall be under no obligation to exercise any of the Trusteerights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Appears in 2 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Duties of the Trustee. (Aa) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived), the The Trustee shall have the authority to exercise such of the rights and powers vested in each it by this Agreement, and use . Any permissive right of the same degree of care and skill Trustee set forth in their exercise this Agreement shall not be construed as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairsduty.
(Bb) The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished to it pursuant to any provision of this Agreement or to it in its capacity as Collateral Holder pursuant to the Pooling and Servicing Agreement, shall examine them to determine whether they conform to the requirements of this Agreement or the pooling and Servicing Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform to the requirements of this Agreement or the Pooling and Servicing Agreement in a material manner, the Trustee shall take such action as a Majority in Interest of Certificateholders shall direct, and the Trustee will provide notice thereof to the Depositor, the Certificateholders and each Rating Agency.
(c) In the event of a default in respect of the CRB Certificates, the Trustee shall proceed to enforce its rights as a holder of the CRB Certificates under the Pooling and Servicing Agreement, unless otherwise directed by a Majority in Interest of each Class of Certificates affected thereby. The Trustee may, in its discretion, and will, if so directed by a Majority in Interest of each Class of Certificates affected thereby, proceed to enforce any rights which it may have as a holder of CRB Certificates. In addition, a Majority in Interest of each Class of Certificates may together direct the time, method and place of conducting any proceeding for any remedy available to the Trustee as a holder of CRB Certificates. Notwithstanding the foregoing, the Trustee shall in no event exercise any of its rights as a Collateral Holder in an manner inconsistent with the terms of paragraphs (d) and (e) of this Section 5.01.
(d) In the event that (i) the TrusteeTrustee has the right to vote or give consent in respect of the CRB Certificates or receives a request from the trustee or the issuer of the CRB Certificates for its consent to any amendment, after so requestingmodification or waiver under any document relating to the CRB Certificates, does not receive satisfactorily corrected documents.
01. The or receives any other solicitation for any action with respect to the CRB Certificates, (ii) the Depositor notifies the Trustee of its determination that taking any such action is primarily intended to maintain the initial value or credit rating of the CRB Certificates, and any additional consequences that might arise as a result of taking any such action are incidental, and (iii) either (A) the CRB Certificate are in default, (B) the Depositor notifies the Trustee of its determination that the CRB Certificates will probably have their credit rating downgraded (or be in default) in the reasonably foreseeable future absent such action or (C) the Depositor delivers to the Trustee an opinion of tax counsel to the effect that the Trust will continue to qualify as a grantor trust under the Code if any such action were to be taken, then, (x) the Trustee shall furnish mail a notice of such proposed action, including a description thereof, to each Certificateholder of record as of such date, (y) the Trustee shall request instructions from the Certificateholders as to whether or not to take such action and (z) the Trustee shall vote, give consent or otherwise act as Collateral Holder with respect to a particular matter in the same proportion as the Certificates of the Trust were actually voted with respect to such matter (or, if such a timely fashion proportional action is not permitted, in accordance with the instructions of Holders of a Majority in Interest of the Certificates) as of a date determined by the Trustee prior to the Master Servicer date on which such information as action is required, provided that the Master Servicer may reasonably request Trustee shall have no liability for any failure to act resulting from time Certificateholders' late return of, or failure to time for return, directions requested by the Master Servicer to fulfill its duties Trustee from the Certificateholders. If each of the conditions set forth in clauses (ii) and (iii) of the next preceding sentence are not satisfied, then the Trustee shall abstain from taking any action with respect to any vote, consent or other action that is referred to in clause (i) of the next preceding sentence.
(e) Notwithstanding anything to the contrary contained herein, the Trustee shall be under no obligation to exercise or enforce any of the rights or powers vested in it by this Agreement or as the Collateral Holder, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Trustee in compliance with such request, order or direction or if such request, order or direction is in conflict with any rule of law or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain In the status event of any portion of default under this Agreement by the Depositor or any REMIC formed default under the Series Supplement as a REMIC under the REMIC Provisions and (CRB Certificates, subject to Section 10.01(f)compliance with paragraph (d) above, the Trustee may in its discretion proceed to prevent protect and enforce the imposition rights of Certificateholders by any federalaction, state suit or local income, prohibited transaction, contribution proceeding deemed proper by the Trustee which is not inconsistent with any request or other tax on direction by the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control Holders of a Majority in Interest of the Trustee and are reasonably within the scope Certificates of their respective duties under this Agreementeach Class affected thereby.
(Cf) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconductmisconduct or from liability for any negligent action or any negligent failure to act in respect of the Trust Property, the CRB Certificates or the Pooling and Servicing Agreement in any capacity other than as Trustee; provided, however, that:
(Ii) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith or negligence on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions certificates, opinions, documents and other statements furnished to the Trustee by the Company or the Master Servicer and which that conform on their face, do not contradict face to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith and believed by it to be authorized or within its discretion or authority hereunder or in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as to such Class, evidencing Percentage Interests aggregating not less than 2566- 2/3% as of all the Certificates relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 2 contracts
Samples: Deposit Trust Agreement (Goldman Sachs Asset Backed Securities Corp), Deposit Trust Agreement (Gs Mortgage Securities Corp)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee, the NIMs Insurer and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and the NIMs Insurer and take such status further action as directed by the Certificateholders and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) NIMs Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the NIMs Insurer or the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge responsible for the acts or omissions of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company Servicer or any Certificateholder; and
(V) Except to the extent provided in Section 7.02Subservicer, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-A), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-Sd1)
Duties of the Trustee. (A) 18.2.1 The TrusteeTrustee shall represent the Bondholders in accordance with the Finance Documents. However, the Trustee is not responsible for the execution or enforceability of the Finance Documents or for any discrepancy between the indicative terms and conditions described in any marketing material presented to the Bondholders prior to issuance of the occurrence Bonds and the provisions of an Event these Bond Terms.
18.2.2 When acting in accordance with the Finance Documents, the Trustee is always acting with binding effect on behalf of Default the Bondholders. The Trustee shall act in the best interest of the Bondholders as a group and after carry out its duties under the curing Finance Documents in a reasonable, proficient and professional manner, with reasonable care and skill.
18.2.3 The Trustee is not obligated to assess or waiver monitor the financial condition of all Events of Default which may have occurredthe Issuer or any other Group Company unless to the extent expressly set out in these Terms and Conditions, undertake or to perform such duties and only such duties as are specifically set forth in this Agreement. In case an take any steps to ascertain whether any Event of Default has occurred (which occurred. Until it has not been cured or waived)actual knowledge to the contrary, the Trustee shall exercise is entitled to assume that no Event of Default has occurred.
18.2.4 The Trustee is entitled to take such steps that it, in its sole discretion, considers necessary or advisable to protect the rights of the rights and powers vested Bondholders in each by this Agreement, and 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.
(B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished matters pursuant to the Trustee which are specifically required to be furnished pursuant to any provision terms of this Agreement, shall examine them to determine whether they conform to the requirements of this AgreementFinance Documents. The Trustee shall notify may submit any instructions received by it from the Certificateholders of Bondholders to a Bondholders' Meeting before the Trustee takes any such documents which do not materially conform action pursuant to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documentsinstruction.
01. 18.2.5 The Trustee is entitled to delegate its duties to other professional parties, but the Trustee shall remain liable for the actions of such parties under the Finance Documents.
18.2.6 The Trustee shall furnish in a timely fashion treat all Bondholders equally and, when acting pursuant to the Master Servicer such information Finance Documents, act with regard only to the interests of the Bondholders and shall not be required to have regard to the interests or to act upon or comply with any direction or request of any other person, other than as explicitly stated in the Master Servicer may reasonably request from time Finance Documents.
18.2.7 The Trustee is entitled to time for the Master Servicer to fulfill engage external experts when carrying out its duties set forth in this Agreementunder the Finance Documents. The Trustee covenants and agrees that it Issuer shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of demand by the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability pay all costs for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(I) Prior to external experts engaged after the occurrence of an Event of Default, and after or for the curing purpose of investigating or waiver of all such Events considering (i) an event or circumstance which the Trustee reasonably believes is or may lead to an Event of Default or (ii) a matter relating to the Issuer or the Transaction Security which the Trustee reasonably believes may have occurred, be detrimental to the duties and obligations interests of the Bondholders under the Finance Documents. Any compensation for damages or other recoveries received by the Trustee from external experts engaged by it for the purpose of carrying out its duties under the Finance Documents shall be determined solely by distributed in accordance with Clause 11.2.1.
18.2.8 The Trustee shall, as applicable, enter into agreements with the express provisions CSD, and comply with such agreement and regulations applicable to the Trustee, as may be necessary in order for the Trustee to carry out its duties under the Finance Documents.
18.2.9 Notwithstanding any other provision of this Agreementthe Finance Documents to the contrary, the Trustee shall is not obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation.
18.2.10 If in the Trustee’s reasonable opinion the cost, loss or liability which it may incur (including reasonable fees to the Trustee) in complying with instructions of the Bondholders, or taking any action at its own initiative, will not be liable except for covered by the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the TrusteeIssuer, the Trustee may conclusively relyrefrain from acting in accordance with such instructions, or taking such action, until it has received such funding or indemnities (or adequate Security has been provided therefore) as it may reasonably require.
18.2.11 The Trustee shall give a notice to the truth Bondholders (i) before it ceases to perform its obligations under the Finance Documents by reason of the statements and non-payment by the correctness Issuer of the opinions expressed therein, upon any certificates fee or opinions furnished indemnity due to the Trustee by under the Company Finance Documents or the Master Servicer and which on their face, do not contradict the requirements of this Agreement;
(II) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii)if it refrains from acting for any reason described in Clause 18.2.10.
18.2.12 The Trustee may instruct the CSD to split the Bonds to a lower nominal amount in order to facilitate partial redemptions, (iv) and (v) of Section 7.01 unless a Responsible Officer restructuring of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, Bonds or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itother situations.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 2 contracts
Samples: Terms and Conditions, Terms and Conditions
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. If the instrument is not corrected to the satisfaction of the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion provide notice thereof to the Master Servicer such information as Certificateholders, the Master Servicer may reasonably request from time to time for Certificate Insurer and any NIMS Insurer and will, at the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status expense of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to Fund, which expense shall be reasonable given the extent that maintaining such status scope and avoiding such taxes are reasonably within the control nature of the Trustee required action, take such further action as directed by the Certificateholders, the Certificate Insurer or any NIMS Insurer. On each Distribution Date, the Trustee, as Paying Agent, shall make monthly distributions the Certificateholders from funds in the Distribution Account, the Basis Risk Reserve Fund, the Yield Maintenance Account and are reasonably within the scope of their respective duties under this Agreement.
(C) Final Maturity Reserve Account, as applicable, in each case as provided in Sections 5.01, 5.07, 5.09 and 5.10 herein. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such of its duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders the Certificate Insurer, any NIMS Insurer or Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from of such Event of Default. The Trustee shall not appoint any Subcontractor without receiving the Master Servicerprior written consent of the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Company or Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor. The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any Certificateholder; and
legal proceedings pending against the Trustee of the type described in Item 1117 (V§ 229.1117) Except of Regulation AB and (ii) if the Trustee shall become (but only to the extent provided in Section 7.02not previously disclosed) at any time an affiliate of any of the responsible parties listed on Exhibit O. On or before March 1 of each year, no provision in this Agreement the Depositor shall require distribute the information on Exhibit O to the Trustee. The Trustee shall not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (HarborView 2006-10), Pooling and Servicing Agreement (HarborView 2007-1)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in each by this Agreement, and 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.
(B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify perform or cause its agents or subcustodians to perform the Certificateholders of any such documents which do not materially conform following duties with respect to the requirements of this Agreement Trust Fund:
(a) Hold the property in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control safekeeping facilities of the Trustee and are reasonably within or of other custodian banks or clearing corporations, in the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act United States or its own willful misconductelsewhere; provided, however, that:
(I) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, provided that the Trustee shall not be liable except responsible for any losses resulting from the deposit or maintenance of securities or other property (in accordance with market practice, custom or regulation) with any recognized foreign or domestic clearing facility, book entry system, centralized depository, or similar organization, including international depositories such as Euroclear and Clearstream;
(b) Collect income payable to and distributions due to the Trust Fund and sign on the Trust Fund’s behalf any declarations, affidavits, certificates of ownership required to collect income and principal payments; provided that the Trustee shall not be responsible for the performance failure to receive payment of such (or late payment of) distributions with respect to securities or other property of the Trust Fund;
(c) Subject to the timely receipt of notice from an issuer or Authorized Party, collect proceeds from securities, certificates of deposit or other investments which may mature or be called;
(d) Forward to the Authorized Party designated by the Company proxies or ballots received for any stocks, bonds or other securities held in the Trust Fund in a form to enable the Authorized Party to effect the voting of proxies, excluding bankruptcy matters to which the Trustee’s duties and obligations as are specifically set forth in this Agreement, no implied covenants Section (f) below;
(e) Submit or obligations shall cause to be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as submitted to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their faceInvestment Manager, do not contradict as designated by the requirements Company, information received by the Trustee, or summaries of this Agreement;
(II) The Trustee shall not be personally liable for an error of judgment made information, regarding ownership rights pertaining to property held in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action takenTrust Fund, suffered or omitted to be taken by it in good faith in accordance with the direction Trustee’s practices, excluding bankruptcy matters to which the Trustee’s duties are set forth in Section (f) below;
(f) Forward to the Authorized Party designated by the Named Fiduciary an initial notice of Certificateholders bankruptcy cases relating to securities held in the Trust Fund and a notice of any Class holding Certificates which evidence, as required action related to such Class, Percentage Interests aggregating not less than 25% bankruptcy cases as may be actually received by the Trustee. No further action or notification related to the timebankruptcy case shall be required absent the specific agreement of the parties hereto;
(g) Attend to corporate actions with respect to which no discretionary decision is required;
(h) Report the value of the Trust Fund as of such dates as the Company and the Trustee may agree upon, method in accordance with methods consistently followed and place uniformly applied. In reporting the value of conducting any proceeding for any remedy available to the Trust Fund, the Trustee, or exercising any trust or power conferred upon in accordance with the Trustee’s then current practices, under this Agreement;
(IV) The shall obtain and rely upon prices and quotes from pricing sources or, if such prices or quotes are unavailable from sources utilized by the Trustee in accordance with its then current practices, from the Company, an Investment Manager or other Authorized Party, and shall be without liability or responsibility for any loss occasioned by such reliance. Notwithstanding the foregoing, in accordance with the Trustee’s then current pricing practices, the Company, an Investment Manager or other Authorized Party may direct the Trustee as to a price or quote to be used, and the Trustee shall not be charged with knowledge of fully protected when relying upon such direction and when utilizing any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 such price or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholderquote; and
(Vi) Except Render statements for such periods as agreed by the parties with respect to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund for property held therein, to an Authorized Party or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trusteedesignee.
Appears in 2 contracts
Samples: Rabbi Trust Agreement, Rabbi Trust Agreement (McDermott International Inc)
Duties of the Trustee. (Aa) The Trustee, prior to the occurrence of an Event of Default 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, undertake undertakes to perform such duties and only such duties as are specifically set forth in this AgreementAgreement and no permissive right of the Trustee shall be construed as a duty. In case During the continuance of an Event of Default of which a Responsible Officer of the Trustee has occurred (which has not been cured or waived)actual knowledge, the Trustee Trustee, subject to the provisions of Section 7.02 and Section 7.04 of this Agreement, shall exercise such of the rights and powers vested in each it by this Agreement, and 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 person’s own affairs.
(Bb) The Trustee Trustee, upon receipt of all any resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Agreement to the extent specifically set forth herein; provided, however, that the Trustee shall notify not be responsible for the Certificateholders accuracy or content of any such documents which do resolution, certificate, statement, opinion, report, document, order or other instrument provided to it hereunder if accepted in good faith. If any such instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that Trustee shall request a corrected instrument, and if the instrument is not corrected to the Trustee’s reasonable satisfaction, after so requesting, does not receive satisfactorily corrected documentsthe Trustee will provide notice thereof to the Certificateholders.
01. The (c) Neither the Trustee nor any of its respective officers, directors, employees, agents or “control” persons within the meaning of the Act shall furnish have any liability arising out of or in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in connection with this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (, provided that, subject to Section 10.01(f)) to prevent the imposition 8.02 of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No , no provision of this Agreement shall be construed to relieve the Trustee or any such person, from liability for its own negligent action, its own negligent failure to act or its own willful misconductmisconduct or its own bad faith; and provided, howeverfurther, that:
(Ii) Prior to the occurrence of an Event of DefaultDefault or Operating Advisor Termination Event of which a Responsible Officer of the Trustee has actual knowledge, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates resolutions, certificates, statements, reports, opinions, documents, orders or opinions other instruments furnished to the Trustee by the Company or the Master Servicer and which that conform on their face, do not contradict face to the requirements of this AgreementAgreement without responsibility for investigating the contents thereof;
(IIii) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee Officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(IIIiii) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders Holders of any Class holding Certificates which evidence, entitled to greater than 50% of the Percentage Interests (or such other percentage as to such is specified herein) of each affected Class, Percentage Interests aggregating not less than 25% as or of the aggregate Voting Rights of the Certificates, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, Trustee or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) Neither the Trustee nor any of its respective directors, officers, employees, agents or control persons shall be responsible for any act or omission of any Custodian, Paying Agent or Certificate Registrar that is not an Affiliate of the Trustee and that is selected other than by the Trustee, performed or omitted in compliance with any custodial or other agreement, or any act or omission of the Master Servicer, Special Servicer, the Depositor, the Operating Advisor or any other third Person, including, without limitation, in connection with actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its respective duties as Trustee in accordance with this Agreement (and, if it does, all reasonable legal expenses and costs of such action shall be expenses and costs of the Trust Fund) and in its opinion does not expose it to any expense or liability for which reimbursement is not reasonably assured, and the Trustee shall be entitled to be reimbursed therefor from the Collection Account, unless such legal action arises out of the negligence or bad faith of the Trustee or any breach of an obligation, representation, warranty or covenant of the Trustee contained herein; provided, however, that the Trustee may in its discretion undertake any such action related to its obligations hereunder which it may deem necessary or desirable with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder; and
(vi) The Trustee shall not be charged with knowledge of any default (other than a default in payment act, failure to act or breach of any Person upon the Trustee) specified in clauses (i) and (ii) occurrence of Section 7.01 or an Event of Default under clauses (iii)which the Trustee may be required to act, (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the failure. The Trustee receives written notice shall be deemed to have actual knowledge of such failure or event at its Corporate Trust Office from the Master Servicer’s or the Special Servicer’s failure to provide scheduled reports, the Company or any Certificateholder; and
(V) Except certificates and statements when and as required to be delivered to the extent provided in Section 7.02, no provision Trustee pursuant to this Agreement. None of the provisions contained in this Agreement shall require the Trustee Trustee, in its capacity as Trustee, to expend or risk its own funds (includingfunds, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if in the opinion of the Trustee shall have reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) , 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 Master Servicer, the Special Servicer or the Operating Advisor under this Agreement, except, with respect to the Trustee, 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 or the Special Servicer in accordance with the terms of this Agreement. The Trustee shall timely pay, from its own funds, the amount not be required to post any surety or bond of any and all federal, state and local taxes imposed on the Trust Fund or kind in connection with its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee performance of its obligations hereunder, which breach constitutes negligence or willful misconduct under this Agreement and the Trustee shall not be liable for any loss on any investment of the Trusteefunds pursuant to this Agreement (other than any funds invested with it in its commercial capacity).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee, the NIMs Insurer and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that Trustee shall notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Trustee's satisfaction, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion will provide notice thereof to the Master Servicer Certificateholders and the NIMs Insurer and take such information further action as directed by the Master Servicer may reasonably request from time to time for Certificateholders and the Master Servicer to fulfill its duties set forth in this AgreementNIMs Insurer. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, and the Trustee may conclusively rely, as to the truth of the statements and the correctness of the -105- opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the NIMs Insurer or the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-Wmc2)
Duties of the Trustee. (Aa) The Trustee, prior Trustee undertakes to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake to --------------------- perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived), the The Trustee shall have the authority to exercise such of the rights and powers vested in each it by this Agreement, and use . Any permissive right of the same degree of care and skill Trustee set forth in their exercise this Agreement shall not be construed as a prudent investor would exercise or use under the circumstances in the conduct of such investor's own affairsduty.
(Bb) The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished to it pursuant to any provision of this Agreement or to it in its capacity as Collateral Holder pursuant to the Pooling and Servicing Agreement, shall examine them to determine whether they conform to the requirements of this Agreement or the pooling and Servicing Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform to the requirements of this Agreement or the Pooling and Servicing Agreement in a material manner, the Trustee shall take such action as a Majority in Interest of Certificateholders shall direct, and the Trustee will provide notice thereof to the Depositor, the Certificateholders and each Rating Agency.
(c) In the event of a default in respect of the CRB Certificates, the Trustee shall proceed to enforce its rights as a holder of the CRB Certificates under the Pooling and Servicing Agreement, unless otherwise directed by a Majority in Interest of each Class of Certificates affected thereby. The Trustee may, in its discretion, and will, if so directed by a Majority in Interest of each Class of Certificates affected thereby, proceed to enforce any rights which it may have as a holder of CRB Certificates. In addition, a Majority in Interest of each Class of Certificates may together direct the time, method and place of conducting any proceeding for any remedy available to the Trustee as a holder of CRB Certificates. Notwithstanding the foregoing, the Trustee shall in no event exercise any of its rights as a Collateral Holder in an manner inconsistent with the terms of paragraphs (d) and (e) of this Section 5.01.
(d) In the event that (i) the TrusteeTrustee has the right to vote or give consent in respect of the CRB Certificates or receives a request from the trustee or the issuer of the CRB Certificates for its consent to any amendment, after so requestingmodification or waiver under any document relating to the CRB Certificates, does not receive satisfactorily corrected documents.
01. The or receives any other solicitation for any action with respect to the CRB Certificates, (ii) the Depositor notifies the Trustee of its determination that taking any such action is primarily intended to maintain the initial value or credit rating of the CRB Certificates, and any additional consequences that might arise as a result of taking any such action are incidental, and (iii) either (A) the CRB Certificate are in default, (B) the Depositor notifies the Trustee of its determination that the CRB Certificates will probably have their credit rating downgraded (or be in default) in the reasonably foreseeable future absent such action or (C) the Depositor delivers to the Trustee an opinion of tax counsel to the effect that the Trust will continue to qualify as a grantor trust under the Code if any such action were to be taken, then, (x) the Trustee shall furnish mail a notice of such proposed action, including a description thereof, to each Certificateholder of record as of such date, (y) the Trustee shall request instructions from the Certificateholders as to whether or not to take such action and (z) the Trustee shall vote, give consent or otherwise act as Collateral Holder with respect to a particular matter in the same proportion as the Certificates of the Trust were actually voted with respect to such matter (or, if such a timely fashion proportional action is not permitted, in accordance with the instructions of Holders of a Majority in Interest of the Certificates) as of a date determined by the Trustee prior to the Master Servicer date on which such information as action is required, provided that the Master Servicer may reasonably request Trustee shall have no liability for any failure to act resulting from time Certificateholders' late return of, or failure to time for return, directions requested by the Master Servicer to fulfill its duties Trustee from the Certificateholders. If each of the conditions set forth in clauses (ii) and (iii) of the next preceding sentence are not satisfied, then the Trustee shall abstain from taking any action with respect to any vote, consent or other action that is referred to in clause (i) of the next preceding sentence.
(e) Notwithstanding anything to the contrary contained herein, the Trustee shall be under no obligation to exercise or enforce any of the rights or powers vested in it by this Agreement or as the Collateral Holder, at the request, order or direction of any of the Certificateholders, unless such Certificateholders have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Trustee in compliance with such request, order or direction or if such request, order or direction is in conflict with any rule of law or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain In the status event of any portion of default under this Agreement by the Depositor or any REMIC formed default under the Series Supplement as a REMIC under the REMIC Provisions and (CRB Certificates, subject to Section 10.01(f)compliance with paragraph (d) above, the Trustee may in its discretion proceed to prevent protect and enforce the imposition rights of Certificateholders by any federalaction, state suit or local income, prohibited transaction, contribution proceeding deemed proper by the Trustee which is not inconsistent with any request or other tax on direction by the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control Holders of a Majority in Interest of the Trustee and are reasonably within the scope Certificates of their respective duties under this Agreementeach Class affected thereby.
(Cf) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconductmisconduct or from liability for any negligent action or any negligent failure to act in respect of the Trust Property, the CRB Certificates or the Pooling and Servicing Agreement in any capacity other than as Trustee; provided, however, that:: -------- -------
(Ii) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith or negligence on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions certificates, opinions, documents and other statements furnished to the Trustee by the Company or the Master Servicer and which that conform on their face, do not contradict face to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;; and
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith and believed by it to be authorized or within its discretion or authority hereunder or in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as to such Class, evidencing Percentage Interests aggregating not less than 2566-2/3% as of all the Certificates relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Duties of the Trustee. (A) For purposes of this Article VIII, references to "Trustee" shall be deemed to include LaSalle Bank National Association in its capacity as Supplemental Interest Trust Trustee. In the performance of its obligations under this Agreement, the Cap Contracts and the Swap Agreement, the Supplemental Interest Trust Trustee shall have all of the rights, protections, immunities and benefits of the Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee, the NIMs Insurer and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and the NIMs Insurer and take such status further action as directed by the Certificateholders and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) NIMs Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the NIMs Insurer or the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge of any default (other than a default in payment to responsible for the Trustee) specified in clauses (i) and (ii) of Section 7.01 acts or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer omissions of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company Servicer or any Certificateholder; and
(V) Except to the extent provided in Section 7.02Subservicer, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2007-He3)
Duties of the Trustee. (A) For purposes of this Article VIII, references to "Trustee" shall be deemed to include LaSalle Bank National Association in its capacity as Supplemental Interest Trust Trustee and in the performance of its obligations under this Agreement, the Cap Contracts and the Swap Agreement, the Supplemental Interest Trust Trustee shall have all of the protections, immunities and benefits of the Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee, the NIMs Insurer and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and the NIMs Insurer and take such status further action as directed by the Certificateholders and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) NIMs Insurer. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the NIMs Insurer or the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge responsible for the acts or omissions of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 servicer or an Event of Default under clauses (iii)subservicer, (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-He6)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Fremont 2004-D Pooling & Servicing Agreement 139 Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (A) For purposes of this Article VIII, references to "Trustee" shall be deemed to include LaSalle Bank National Association, in its capacity as Supplemental Interest Trust Trustee under this Agreement , the Cap Contract and the Swap Agreement, and in respect thereof the Supplemental Interest Trust Trustee shall have all of the rights, protections, immunities and benefits of the Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders, or may, proceed to protect and enforce its rights and the rights of the Certificateholders under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and take such status and avoiding such taxes are reasonably within further action as directed by the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge responsible for the acts or omissions of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company Servicer or any Certificateholder; and
(V) Except to the extent provided in Section 7.02Subservicer, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust, Series 2006-Ff18)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. On each Distribution Date, the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01shall make monthly distributions and the final distribution to the Certificateholders from funds in the Distribution Account as provided in Sections 5.01 and 10.01 herein. The Trustee shall furnish in a timely fashion provide to each of the Certificate Insurers one (1) copy of each notice, consent, certificate or report that it receives pursuant to the Master Servicer such information as terms of the Master Servicer may reasonably request from time Servicing Agreement and is required to time for provide to the Master Servicer Certificateholders pursuant to fulfill its duties set forth in the terms of this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in , as well as a manner so copy of any statements as to maintain compliance and the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject annual independent public accountants’ servicing report required to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund be delivered to the extent that maintaining such status Trustee pursuant to Sections 4.4 and avoiding such taxes are reasonably within the control 4.5, respectively, of the Trustee and are reasonably within the scope of their respective duties under this Servicing Agreement.
(C) . No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer, the Depositor, the Seller or the Custodian, or any successor Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement of such Event of Default. The Trustee shall require the Trustee not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 1 contract
Samples: Pooling Agreement (HarborView Mortgage Loan Trust 2005-9)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Xxxxxxx 0X.00. Xxxxxxx 0000-X Xxxxxxx & Servicing Agreement 138 Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an a Master Servicer Event of Default and after the curing or waiver of all Events any such Master Servicer Event of Default which may have occurredDefault, undertake undertakes to perform such duties and only such duties as are specifically set forth in this the Trust Agreement. In case an Notwithstanding anything to the contrary herein, the appointment by the Trustee of Xxxxx Fargo Bank, N.A. as Securities Administrator to perform the duties and obligations specifically set forth in Sections 2.03, 3.01, 3.02, 3.03, 3.05, 4.01, 4.03, 4.04, 5.02, 5.03, 5.04, 5.08, 7.01, 7.02 and 10.03 hereof, and any other duties and obligations as may be set forth in a letter agreement between Xxxxx Fargo Bank, N.A. and the Trustee, shall not release the Trustee from its duty to perform such duties and obligations hereunder. During a Master Servicer Event of Default relating to the Trustee of which a Responsible Officer of the Trustee has occurred (which has not been cured or waived)notice, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, the Trust Agreement and 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.
(B) . The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments created by any Person other than itself and furnished to the Trustee it which are specifically required to be furnished pursuant to any provision of this the Trust Agreement, Custodial Agrreement, Servicing Agreement, Sale Agreement or Assignment Agreement shall examine them to determine whether they conform to the requirements of this Agreement. The such agreement; provided, however, that the Trustee shall notify not be under any duty to recalculate, verify or recompute the Certificateholders of information provided to it hereunder by the Servicer or the Depositor. If any such documents which do instrument is found not materially to conform to the requirements of this Agreement such agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion take action as it deems appropriate to have the instrument corrected, and if the instrument is not corrected to its satisfaction, then it will provide notice thereof to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants other and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this the Trust Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ia) Prior to the occurrence of an any Master Servicer Event of Default, Default and after the curing or waiver of all of such Events of Default which may have occurredDefault, the respective duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreementthe Trust Agreement (including the obligation, if any, of the Trustee to enforce each Servicing Agreement against the related Servicer, each Custodial Agreement against the related Custodian, each Sale Agreement against the related Seller, each Assignment Agreement against GSMC and otherwise to act as owner under such agreements for the benefit of the Certificateholders), the Trustee shall not be liable except for the performance of such the respective duties and obligations as are specifically set forth in this the Trust Agreement, no implied covenants or obligations shall be read into this the Trust Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict that conform to the requirements of this the Trust Agreement;
(IIb) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible an Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(IIIc) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this the Trust Agreement;
(IVd) The Trustee shall not be charged with knowledge Any determination of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) negligence, bad faith, willful misconduct or breach of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer conduct of the Trustee assigned to shall be made only upon a finding that there is clear and working convincing evidence (and not upon the mere preponderance of evidence) thereof in the Corporate Trust Office obtains actual knowledge a proceeding before a court of such failure or event or competent jurisdiction in which the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholderhas had an opportunity to defend; and
(Ve) Except In no event shall the Trustee be held liable for the actions or omissions of any Master Servicer, Securities Administrator, Credit Risk Advisor, Servicer or Custodian (excepting the Trustee’s own actions as Master Servicer, Securities Administrator, Servicer or Custodian). Prior to the extent provided in Section 7.02occurrence of any Event of Default and after the curing of all such Events of Default, other than those obligations assumed by the Trustee as successor Servicer under Article VII, no provision in this of the Trust Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee 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 itit unless such risk or liability relates to duties set forth herein.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2005-Ar4)
Duties of the Trustee. (Aa) The Trustee, prior to the occurrence of If an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake Rapid Amortization Event actually known to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default a Trust Officer has occurred (which has not been cured or waived)and is continuing, the Trustee shall exercise such (except in the case of the rights receipt of directions with respect to such matter from the Control Party in accordance with the terms of this Base Indenture or another Related Document in which event the Trustee’s sole obligation will be to await such direction and powers vested act or refrain from acting in each by this Agreement, and 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.accordance therewith) exercise
(Bb) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(I) Prior to Except during the occurrence and continuance of an Event of Default, Rapid Amortization Event, Manager Termination Event or Servicer Termination Event of which a Trust Officer shall have Actual Knowledge: (i) The Trustee undertakes to perform only those duties that are specifically set forth in the Indenture or any other Related Document to which it is a party and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreementno others, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this AgreementIndenture, and no implied covenants or obligations shall be read into this Agreement the Indenture or any other Related Document against the Trustee and, in Trustee; and (ii) In the absence of bad faith on the part of the Trusteeits part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(II) The Trustee shall not be personally liable for an error the Indenture and any other applicable Related Document; provided, however, in the case of judgment made in good faith any such certificates or opinions which by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted provision hereof are specifically required to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available furnished to the Trustee, the Trustee shall be under a duty to examine such certificates or exercising opinions to determine whether or not they conform to the requirements of the Indenture and shall promptly notify the party of any trust or power conferred upon the Trustee, under this Agreement;non-conformity.
(IVc) The Trustee shall may not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses relieved from liability for its own negligent action, bad faith or willful misconduct, except that: (i) and This clause (iic) does not limit the effect of clause (b) of this Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it10.1.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Duties of the Trustee. (A) For purposes of this Article VIII, references to "Trustee" shall be deemed to include LaSalle Bank National Association, in its capacity as Supplemental Interest Trust Trustee under this Agreement and the Swap Agreement, and in respect thereof the Supplemental Interest Trust Trustee shall have all of the rights, protections, immunities and benefits of the Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders, or may, proceed to protect and enforce its rights and the rights of the Certificateholders under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and take such status and avoiding such taxes are reasonably within further action as directed by the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge responsible for the acts or omissions of any default Servicer or Subservicer (other than a default in payment to including the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iiiSpecial Servicer), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Ff1)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. If the instrument is not corrected to the satisfaction of the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion provide notice thereof to the Master Servicer such information as Certificateholders and any NIMS Insurer and will, at the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status expense of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to Fund, which expense shall be reasonable given the extent that maintaining such status scope and avoiding such taxes are reasonably within the control nature of the Trustee required action, take such further action as directed by the Certificateholders or any NIMS Insurer. On each Distribution Date, the Trustee, as Paying Agent, shall make monthly distributions the Certificateholders from funds in the Distribution Account, the Basis Risk Reserve Fund, the Yield Maintenance Account, the Class 2A-1C2 Yield Maintenance Account and are reasonably within the scope of their respective duties under this Agreement.
(C) Final Maturity Reserve Account, as applicable, in each case as provided in Sections 5.01, 5.07, 5.09, 5.12 and 10.01 herein. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such of its duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders any NIMS Insurer or Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from of such Event of Default. The Trustee shall not appoint any Subcontractor without receiving the Master Servicerprior written consent of the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Company or Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor. The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any Certificateholder; and
legal proceedings pending against the Trustee of the type described in Item 1117 (V§ 229.1117) Except of Regulation AB and (ii) if the Trustee shall become (but only to the extent provided in Section 7.02not previously disclosed) at any time an affiliate of any of the responsible parties listed on Exhibit O. On or before March 1 of each year, no provision in this Agreement the Depositor shall require distribute the information on Exhibit O to the Trustee. The Trustee shall not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Harborview 2006-9)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) 148 No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or Fremont 2005-A Pooling & Servicing Agreement 134 obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (Aa) Except for records dealing solely with the Trust and its investments and disbursements, which shall be maintained by the Trustee, the Primary Sponsor shall maintain all records contemplated by the Plan. The Trustee shall have no responsibility to determine whether the Fund is sufficient to meet liabilities under the Plan, and shall not be liable for payments or Plan liabilities in excess of the assets held in the Fund.
(b) The Primary Sponsor shall furnish to the Trustee, prior in a form reasonably acceptable to the occurrence Trustee, all the information necessary to determine the benefits payable to or with respect to each participant in the Plan, including any benefits payable after a participant's death. The Primary Sponsor shall from time to time, and at least annually, and promptly upon the request of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake Trustee furnish updated information to perform such duties and only such duties as are specifically set forth in this Agreementthe Trustee. In case an Event of Default has occurred (which has not been cured the event the Primary Sponsor refuses or waived)neglects to provide any updated information as contemplated herein, the Trustee shall exercise such of rely upon the rights and powers vested in each by this Agreement, and 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.
(B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments most recent information furnished to it by the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconductPrimary Sponsor; provided, however, that:
(I) Prior that on or after a Change of Control, where the Trustee does not have updated information or in the event the Trustee is aware of a dispute between the Primary Sponsor and any participant or beneficiary as to the occurrence amount or timing of an Event of Defaultbenefits payable to the participant or beneficiary, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by rely upon a direction from the express provisions Designated Accounting Firm (as defined below) to resolve the dispute. For purposes of this Agreement, the Trustee term "Designated Accounting Firm" shall not be liable except for the performance of such duties and obligations as are specifically set forth mean Ernst & Young LLP or any other accounting firm subsequently communicated in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements of this Agreement;
(II) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available writing to the Trustee; provided, or exercising any trust or power conferred upon the Trusteehowever, under this Agreement;
(IV) The Trustee shall not be charged with knowledge that no subsequent designation of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same accounting firm shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach given effect by the Trustee if the designation occurs after the effective date of its obligations hereunder, which breach constitutes negligence a Change of Control. The Trustee has no responsibility to verify information provided to it by the Primary Sponsor or willful misconduct of the TrusteeDesignated Accounting Firm.
Appears in 1 contract
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. If the instrument is not corrected to the satisfaction of the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion provide notice thereof to the Master Servicer such information as Certificateholders and any NIMS Insurer and will, at the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status expense of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to Fund, which expense shall be reasonable given the extent that maintaining such status scope and avoiding such taxes are reasonably within the control nature of the Trustee required action, take such further action as directed by the Certificateholders or any NIMS Insurer. On each Distribution Date, the Trustee, as Paying Agent, shall make monthly distributions the Certificateholders from funds in the Distribution Account, the Basis Risk Reserve Fund, the Yield Maintenance Account and are reasonably within the scope of their respective duties under this Agreement.
(C) Final Maturity Reserve Account, as applicable, in each case as provided in Sections 5.01, 5.07, 5.09, 5.12 and 10.01 herein. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such of its duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders any NIMS Insurer or Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from of such Event of Default. The Trustee shall not appoint any Subcontractor without receiving the Master Servicerprior written consent of the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Company or Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor. The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any Certificateholder; and
legal proceedings pending against the Trustee of the type described in Item 1117 (V§ 229.1117) Except of Regulation AB and (ii) if the Trustee shall become (but only to the extent provided in Section 7.02not previously disclosed) at any time an affiliate of any of the responsible parties listed on Exhibit O. On or before March 1 of each year, no provision in this Agreement the Depositor shall require distribute the information on Exhibit O to the Trustee. The Trustee shall not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView 2006-Sb1)
Duties of the Trustee. (A) 9.1 The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (the Transaction Documents to which has not been cured it or waived), the Trustee shall exercise such of the rights Issuer is a party and powers vested in each by this Agreement, and 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.
(B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(I) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement Deed or such other documents against the Trustee and, in Trustee. In the absence event that the Issuer fails to perform any of bad faith on the part of the Trusteeits obligations under any Transaction Document to which it is a party, the Trustee may conclusively rely, as shall to the truth extent practicable cause such obligations to be performed in accordance therewith. In the event of any inconsistency between the Conditions on the one hand and any of the statements and other Transaction Documents on the correctness of other, the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements of this Agreement;Conditions shall prevail.
(II) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers 9.2 Each of the Trustee unless it shall (before the delegation referred to in Clause 8.1 becomes effective) and the Delegate (after the delegation referred to in Clause 8.1 becomes effective) undertakes to cause all income from the Issuer Trust Property to be proved that the Trustee was negligent in ascertaining the pertinent facts;
distributed (III) The Trustee shall not be personally liable with respect subject to any action taken, suffered withholding or omitted deduction required to be taken by it made for or on account of Tax, including any FATCA Deduction), and all payments in good faith respect of the Certificates to be made, in accordance with the direction Conditions, always subject to and in accordance with the applicable Issuer Priorities of Payments.
9.3 The Trustee shall hold available for inspection without cost by the Delegate (or any person appointed by the Delegate) and the Certificateholders at its Specified Office during normal business hours on any day (excluding Saturdays, Sundays and public holidays) copies of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place following documents:
(a) the constitutional documents of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this AgreementIssuer;
(IVb) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer most recently prepared annual financial statements of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master ServicerIssuer, the Company or if any Certificateholderare prepared; and
(Vc) Except to those Transaction Documents listed in the extent provided in Section 7.02Conditions as being available for inspection, no provision together with any agreements or documents amending the terms thereof.
9.4 None of the provisions contained in this Agreement Deed shall require the Trustee to do anything which may (a) be illegal or contrary to applicable law or regulation or (b) cause it to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability Liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights rights, powers or powersdiscretions, if the Trustee it shall have reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability Liability is not reasonably assured to it.
(D) The Trustee shall timely pay9.5 At any time, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach notice received by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of that has not also been sent to the Delegate and that relates to any matter that has been delegated to the Delegate pursuant to this Deed shall promptly be forwarded to the Delegate by the Trustee.
Appears in 1 contract
Samples: Amendment and Restatement Deed
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. If the instrument is not corrected to the satisfaction of the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion provide notice thereof to the Master Servicer Certificateholders and any NIMS Insurer and will, at the expense of the Trust Fund, which expense shall be reasonable given the scope and nature of the required action, take such information further action as directed by the Master Servicer may reasonably request from time to time for Certificateholders or any NIMS Insurer. On each Distribution Date (or in the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status case of any portion of any REMIC formed under payments to the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federalSwap Provider, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to Swap Payment Date), the extent that maintaining such status Trustee, as Paying Agent, shall make monthly distributions the Certificateholders and avoiding such taxes are reasonably within the control of Swap Provider from funds in the Trustee Distribution Account, the Basis Risk Reserve Fund, the Swap Account and are reasonably within the scope of their respective duties under this Agreement.
(C) Basis Risk Cap Account as provided in Sections 5.01, 5.07 and 10.01 herein. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such of its duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders any NIMS Insurer or Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from of such Event of Default. The Trustee shall not appoint any Subcontractor without receiving the Master Servicerprior written consent of the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Company or Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor. The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any Certificateholder; and
legal proceedings pending against the Trustee of the type described in Item 1117 (V§ 229.1117) Except of Regulation AB and (ii) if the Trustee shall become (but only to the extent provided in Section 7.02not previously disclosed) at any time an affiliate of any of the responsible parties listed on Exhibit O. On or before March 1 of each year, no provision in this Agreement the Depositor shall require distribute the information on Exhibit O to the Trustee. The Trustee shall not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView 2006-11)
Duties of the Trustee. (A) For purposes of this Article VIII, references to "Trustee" shall be deemed to include LaSalle Bank National Association, in its capacity as Supplemental Interest Trust Trustee under this Agreement, the Cap Contract and the Swap Agreement, and in respect thereof, the Supplemental Interest Trust Trustee shall have all of the rights, protections, immunities and benefits of the Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders, or may, proceed to protect and enforce its rights and the rights of the Certificateholders under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform on its face to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion notify the person providing such Agreement of such non-conformance, and if the instrument is not corrected to the Master Servicer such information as its satisfaction, the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund will provide notice thereof to the extent that maintaining Certificateholders and take such status and avoiding such taxes are reasonably within further action as directed by the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent factsbad faith or with willful misfeasance;
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;; and
(IViv) The the Trustee shall not be charged with knowledge responsible for the acts or omissions of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company Servicer or any Certificateholder; and
(V) Except to the extent provided in Section 7.02Subservicer, no provision in it being understood that this Agreement shall require the Trustee not be construed to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of render any of its duties as Trustee hereunder, or in the exercise them agents of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itone another.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may Fremont [200___-___] Pooling & Servicing Agreement conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (A) 9.1 The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in each by this Agreement, and 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.
(B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, thatscheme shall:
(Ii) Prior to take into custody or under his control all the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations property of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except scheme and hold it in trust for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements of this Agreement;
(II) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith unit holders in accordance with the direction provisions of Certificateholders this Deed of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as Trust and ensure that cash and registrable assets are held or registered in the name of or to the time, method and place order of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreementscheme;
(IVii) The Trustee shall not be charged with knowledge liable for any act or omission of any default (other than a default agent with whom any investments in payment bearer form are deposited as if they were the act or omission of any nominee in relation to any investment forming part of the Trustee) specified in clauses (i) and (ii) property of Section 7.01 or an Event of Default under clauses the scheme;
(iii)) take reasonable care to ensure that the initial sale, sale, repurchase and cancellation of units effected by the scheme are carried out in accordance with the provisions of this Deed of Trust;
(iv) take reasonable care to ensure that the methods adopted by the Manager in calculating the value of units are adequate to ensure that the sale and repurchase prices are calculated in accordance with the provisions of this Deed of Trust;
(v) of Section 7.01 unless a Responsible Officer carry out the instructions of the Trustee assigned Manager in respect of investment unless they are in conflict with the provisions of this deed;
(vi) take reasonable care to ensure that the investment and working borrowing limitations set out in this Deed of Trust and conditions stipulated in any law or regulations under which this scheme is authorized are complied with;
(vii) issue a report to the unit holders to be included in the Corporate Trust Office obtains actual knowledge annual report on whether in the Trustee’s opinion, the Manager has in all material respects managed the scheme in accordance with provisions of such failure or event or this Deed of Trust: if the Manager has not done so, the respects in which it has not done so and the steps which the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; andhas taken in respect thereof;
(Vviii) Except take reasonable care to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall ensure that unit certificates are not issued until subscription moneys have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to itbeen paid.
(Dix) The Trustee shall timely pay, from its own funds, ensure that any registrable investments which are held for unit holders in the amount of any and all federal, state and local taxes imposed on scheme are properly registered in the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F name of the Codescheme.
(x) where title to investments is recorded electronically, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) ensure that entitlements are separately identified from those of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) manager of the Code, but only if such taxes arise out of a breach by scheme in the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct records of the Trusteeperson maintaining records of entitlement.
Appears in 1 contract
Samples: Deed of Amendment
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. If the instrument is not corrected to the satisfaction of the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion provide notice thereof to the Master Servicer such information as Certificateholders and any NIMS Insurer and will, at the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status expense of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to Fund, which expense shall be reasonable given the extent that maintaining such status scope and avoiding such taxes are reasonably within the control nature of the Trustee required action, take such further action as directed by the Certificateholders or any NIMS Insurer. On each Distribution Date, the Trustee, as Paying Agent, shall make monthly distributions the Certificateholders from funds in the Distribution Account, the Basis Risk Reserve Fund, the Yield Maintenance Account and are reasonably within the scope of their respective duties under this Agreement.
(C) Final Maturity Reserve Account, as applicable, in each case as provided in Sections 5.01, 5.07, 5.09 and 5.10 herein. 128 No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such of its duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders any NIMS Insurer or Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from of such Event of Default. The Trustee shall not appoint any Subcontractor without receiving the Master Servicerprior written consent of the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Company or Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor. The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any Certificateholder; and
legal proceedings pending against the Trustee of the type described in Item 1117 (V§ 229.1117) Except of Regulation AB and (ii) if the Trustee shall become (but only to the extent provided in Section 7.02not previously disclosed) at any time an affiliate of any of the responsible parties listed on Exhibit O. On or before March 1 of each year, no provision in this Agreement the Depositor shall require distribute the information on Exhibit O to the Trustee. 129 The Trustee shall not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView 2007-3)
Duties of the Trustee. (Aa) The Other than while acting in its capacity as Successor Servicer, the Trustee, prior to the occurrence of an Event a Servicer Default of Default which a Responsible Officer of the Trustee has actual knowledge and after the curing or waiver of all Events of Default Servicer Defaults which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied duties or covenants shall be read into this Agreement against the Trustee. In case an Event If a Responsible Officer of the Trustee has actual knowledge that a Servicer Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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 or her own affairs.. Pooling and Servicing Agreement
(Bb) The Trustee Trustee, upon receipt of all any resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this AgreementAgreement or any Supplement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially substantially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01or any Supplement. The Trustee shall furnish in a timely fashion give prompt written notice to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants Certificateholders, any Enhancement Provider and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status each Rating Agency of any portion material lack of conformity of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund such instrument to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision applicable requirements of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(I) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements of this Agreement;
(II) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach Supplement discovered by the Trustee of its obligations hereunder, which breach constitutes negligence would entitle any Enhancement Provider or willful misconduct a specified percentage of the TrusteeInvestor Certificateholders to take any action pursuant to this Agreement or any Supplement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Muehlstein Holding Corp)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, Agreement and 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.
(B) . In case an Event of Default or other default by the Servicer or the Depositor hereunder shall occur and be continuing, the Trustee shall, at the written direction of the majority of the Certificateholders or the NIMs Insurer, or may, proceed to protect and enforce its rights and the rights of the Certificateholders or the NIMs Insurer under this Agreement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this agreement or in aid of the execution of any power granted in this Agreement or for the enforcement of any other legal, equitable or other remedy, as the Trustee, being advised by counsel and subject to the foregoing, shall deem most effectual to protect and enforce any of the rights of the Trustee, the NIMs Insurer and the Certificateholders. The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which that are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. The Trustee shall notify the Certificateholders of If any such documents which do instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion take such action as it deems appropriate to have the instrument corrected and if the instrument is not corrected to its satisfaction, the Trustee will provide notice to the Master Servicer Certificateholders and the NIMs Insurer and take such information further action as directed by the Master Servicer may reasonably request from time to time for Certificateholders and the Master Servicer to fulfill its duties set forth in this AgreementNIMs Insurer. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct, its negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misconductmisfeasance or bad faith; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which that may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable liable, individually or as Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, and the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this AgreementAgreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;
(IIii) The the Trustee shall not not, individually or as Trustee, be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent or acted in ascertaining the pertinent facts;bad faith or with willful misfeasance; and
(IIIiii) The the Trustee shall not be personally liable liable, individually or as Trustee, with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as the NIMs Insurer or the Holders in accordance with this Agreement relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ownit Mortgage Loan Trust, Series 2006-2)
Duties of the Trustee. (A) The TrusteeTrustee shall have no authority, prior control or responsibility with respect to the occurrence of an Event of Default and after the curing Plan or waiver of all Events of Default which may have occurred, undertake to perform such duties and only such duties Fund other than as are specifically set forth in this AgreementAgreement or the Plan. In case an Event The Trustee, through its agents or directly, shall have the following duties:
(a) to hold, invest and reinvest the assets of Default has occurred (which has not been cured or waived)the Fund solely in accordance with the investment directions transmitted in accordance with Section 5, provided, however, the Trustee shall exercise such of the rights and powers vested may, in each by this Agreementits discretion, and use the same degree of care and skill in their exercise as delegate its custodial responsibility to a prudent investor would exercise corporate trustee or use under the circumstances in the conduct of such investor's own affairsinsurance company.
(Bb) The Trustee upon receipt to pay moneys to or at the direction of all resolutionsthe Company, certificatesincluding, statementswhen the Company shall so direct, opinions, reports, documents, orders or other instruments furnished payments to the Trustee which are specifically required participants and their beneficiaries, or to be furnished pursuant an insurance company to any provision provide, by the purchase of this Agreementan annuity contract or otherwise, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall notify the Certificateholders of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status payment of any portion of any REMIC formed benefits under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconductPlan; provided, however, that:
(I) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, that the Trustee shall not be liable except responsible in any way for the application of such payments; and
(c) subject to Section 5, to transfer assets of the Fund at the direction of the Company to any other trustee or to an insurance company selected to fund a Plan or, at the direction of the Company, to segregate such assets to be subject to the exclusive management and control of an investment manager (as such term is defined in Section 3(38) of ERISA) appointed by the Company. Any such investment manager shall direct the Trustee in place of the Company as provided hereunder with respect to the segregated assets. The Trustee shall be entitled to rely conclusively on any directions transmitted in accordance with this Section 3 or pursuant to Section 5 and shall be under no duty to inquire as to the propriety or correctness of any such direction. In the performance of such the foregoing duties, the Trustee shall be entitled to all of the powers, privileges, limitations and immunities conferred on it under the following provisions of this Agreement and by law, and no duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against imposed upon the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as with respect to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Fund unless they have been specifically undertaken by the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements express terms of this Agreement;
. When determining the nature and extent of its responsibilities, the Trustee is not required to obtain or review the Plan. In the event of any conflict between the Plan and this Agreement relating to (IIi) the Trustee's rights, powers, responsibilities, or liabilities, or (ii) the allocation of responsibilities among the Plan Fiduciaries, the provisions of this Agreement shall control. The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer the validity or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders legality of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as changes made to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach Plan by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeCompany.
Appears in 1 contract
Samples: Trust Agreement (Microage Inc /De/)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) 181 No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. In case If an Event of Default has occurred (which has not been cured or waived)) of which a Responsible Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and use the same degree of care and skill in their exercise exercise, as a prudent investor man would exercise or use under the circumstances in the conduct of such investor's his own affairs.
(B) . The Trustee Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee Trustee, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The ; provided, however, that the Trustee shall notify will not be responsible for the Certificateholders accuracy or content of any such resolutions, certificates, statements, opinions, reports, documents which do or other instruments. If any such instrument is found not materially to conform to the requirements of this Agreement in a material manner, the event that Trustee shall take such action as it deems appropriate to have the instrument corrected. If the instrument is not corrected to the satisfaction of the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The the Trustee shall furnish in a timely fashion provide notice thereof to the Master Servicer such information as Certificateholders, the Master Servicer may reasonably request from time to time for Certificate Insurer and any NIMS Insurer and will, at the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status expense of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to Fund, which expense shall be reasonable given the extent that maintaining such status scope and avoiding such taxes are reasonably within the control nature of the Trustee required action, take such further action as directed by the Certificateholders, the Certificate Insurer or any NIMS Insurer. On each Distribution Date, the Trustee, as Paying Agent, shall make monthly distributions the Certificateholders from funds in the Distribution Account, the Basis Risk Reserve Fund, the Yield Maintenance Account, the Class 0X-0X0 Xxxxx Xxxxxxxxxxx Account, the Class 0X-0X0 Xxxxx Xxxxxxxxxxx Account and are reasonably within the scope of their respective duties under this Agreement.
(C) Final Maturity Reserve Account, as applicable, in each case as provided in Sections 5.01, 5.07, 5.09 and 5.10 herein. No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurred, the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of such of its duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict conforming to the requirements of this Agreement;
(IIii) The the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining or investigating the pertinent factsfacts related thereto;
(IIIiii) The the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the consent or at the direction of Certificateholders the Certificate Insurer, any NIMS Insurer or Holders of any Class holding Certificates which evidence, as to such Class, Percentage Interests aggregating not less than 25% as provided herein relating to the time, method and place of conducting any proceeding for any remedy available pursuant to the Trusteethis Agreement, or exercising or omitting to exercise any trust or power conferred upon the Trustee, Trustee under this Agreement;
(IViv) The the Trustee shall not be responsible for any act or omission of the Servicer (except in its capacity as successor servicer to the extent provided in Section 7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in at the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its the Corporate Trust Office from of such Event of Default. The Trustee shall not appoint any Subcontractor without receiving the Master Servicerprior written consent of the Depositor to appoint any Subcontractor, which consent shall not be unreasonably withheld. If the Trustee appoints a Subcontractor without receiving such prior written consent, the Company or Trustee shall be deemed to be in breach of this Agreement and may be removed by the Depositor. The Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof (i) of any Certificateholder; and
legal proceedings pending against the Trustee of the type described in Item 1117 (V§ 229.1117) Except of Regulation AB and (ii) if the Trustee shall become (but only to the extent provided in Section 7.02not previously disclosed) at any time an affiliate of any of the responsible parties listed on Exhibit O. On or before March 1 of each year, no provision in this Agreement the Depositor shall require distribute the information on Exhibit O to the Trustee. The Trustee shall not be required to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial or other liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have there is reasonable grounds ground for believing that the repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(D) The , 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 Servicer under the Servicing Agreement, except during such time, if any, as the Trustee shall timely paybe the successor to, from its own fundsand be vested with the rights, duties, powers and privileges of, the amount of any and all federal, state and local taxes imposed on Servicer in accordance with the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F terms of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeServicing Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (HarborView 2006-12)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an a Master Servicer Event of Default and after the curing or waiver of all Events any such Master Servicer Event of Default which may have occurredDefault, undertake undertakes to perform such duties and only such duties as are specifically set forth in this the Trust Agreement. In case an Notwithstanding anything to the contrary herein, the appointment by the Trustee of Xxxxx Fargo Bank, N.A. as Securities Administrator to perform the duties and obligations specifically set forth in Sections 2.03, 3.01, 3.02, 3.03, 3.05, 4.01, 4.03, 4.04, 5.02, 5.03, 5.04, 5.08, 7.01, 7.02 and 10.03 hereof, and any other duties and obligations as may be set forth in a letter agreement between Xxxxx Fargo Bank, N.A. and the Trustee, shall not release the Trustee from its duty to perform such duties and obligations hereunder. During a Master Servicer Event of Default relating to the Trustee of which a Responsible Officer of the Trustee has occurred (which has not been cured or waived)notice, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, the Trust Agreement and 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.
(B) . The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments created by any Person other than itself and furnished to the Trustee it which are specifically required to be furnished pursuant to any provision of this the Trust Agreement, Custodial Agreement, Servicing Agreement, Sale Agreement or Assignment Agreement shall examine them to determine whether they conform to the requirements of this Agreement. The such agreement; provided, however, that the Trustee shall notify not be under any duty to recalculate, verify or recompute the Certificateholders of information provided to it hereunder by the Servicer or the Depositor. If any such documents which do instrument is found not materially to conform to the requirements of this Agreement such agreement in a material manner, the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion take action as it deems appropriate to have the instrument corrected, and if the instrument is not corrected to its satisfaction, then it will provide notice thereof to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties set forth in this Agreement. The Trustee covenants other and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) Certificateholders. No provision of this the Trust Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ia) Prior to the occurrence of an any Master Servicer Event of Default, Default and after the curing or waiver of all of such Events of Default which may have occurredDefault, the respective duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreementthe Trust Agreement (including the obligation, if any, of the Trustee to enforce each Servicing Agreement against the related Servicer, each Custodial Agreement against the related Custodian, each Sale Agreement against the related Seller, each Assignment Agreement against GSMC and otherwise to act as owner under such agreements for the benefit of the Certificateholders), the Trustee shall not be liable except for the performance of such the respective duties and obligations as are specifically set forth in this the Trust Agreement, no implied covenants or obligations shall be read into this the Trust Agreement against the Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict that conform to the requirements of this the Trust Agreement;
(IIb) The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible an Officer or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(IIIc) The Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this the Trust Agreement;
(IVd) The Trustee shall not be charged with knowledge Any determination of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) negligence, bad faith, willful misconduct or breach of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer conduct of the Trustee assigned to shall be made only upon a finding that there is clear and working convincing evidence (and not upon the mere preponderance of evidence) thereof in the Corporate Trust Office obtains actual knowledge a proceeding before a court of such failure or event or competent jurisdiction in which the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholderhas had an opportunity to defend; and
(Ve) Except In no event shall the Trustee be held liable for the actions or omissions of any Master Servicer, Securities Administrator, Credit Risk Advisor, Servicer or Custodian (excepting the Trustee’s own actions as Master Servicer, Securities Administrator, Servicer or Custodian). Prior to the extent provided in Section 7.02occurrence of any Event of Default and after the curing of all such Events of Default, other than those obligations assumed by the Trustee as successor Servicer under Article VII, no provision in this of the Trust Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee 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 itit unless such risk or liability relates to duties set forth herein.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSR Mortgage Loan Trust 2005-Ar7)
Duties of the Trustee. (A) The Trustee, prior to before the occurrence of an a Servicer Event of Default or Master Servicer Event of Termination and after the curing or waiver of all Servicer Events of Default which or Master Servicer Events of Termination that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an a Master Servicer Event of Default Termination has occurred (which has not been cured or waived)and remains uncured, the Trustee shall exercise such of the rights and powers vested in each it by this Agreement, and 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.
(B) The . Each of the Trustee and the Trust Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which it that are specifically required to be furnished pursuant to any provision of this Agreement, Agreement shall examine them to determine whether they conform to are in the requirements of form required by this Agreement. The Neither the Trustee nor the Trust Administrator shall notify be responsible for the Certificateholders accuracy or content of any such documents which do not materially conform to the requirements of this Agreement in the event that the Trusteeresolution, after so requestingcertificate, does not receive satisfactorily corrected documents.
01statement, opinion, report, document, order, or other instrument. The Trustee shall furnish in a timely fashion Trust Administrator agrees to notify the Master Servicer in writing no later than 5:00 p.m. New York time on each Remittance Date of the aggregate dollar amount of the funds received by the Trust Administrator from the Servicer on such Remittance Date and any other information as reasonably requested by the Master Servicer may reasonably request from time Servicer, so as to time for enable the Master Servicer to fulfill its duties set forth make the reconciliations and verifications required to be made by it pursuant to Section 3A.01. Neither the Trustee nor the Trust Administrator shall be deemed to have knowledge of a Servicer Event of Default or Master Servicer Event of Termination unless a Responsible Officer of the Trustee or the Trust Administrator, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such a Servicer Event of Default or Master Servicer Event of Termination is received by the Trustee or the Trust Administrator, respectively, and such notice references any of the Certificates, the Trust, the REMICs or this Agreement. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain the status of any portion of any REMIC formed under the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee or the Trust Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct; provided, however, that:
(Ii) Prior to The duties and obligations of the occurrence of an Event of DefaultTrust Administrator, and after the curing or waiver of all such Events of Default which may have occurred, with respect to the duties and obligations of the Trustee Trustee, prior to the occurrence of a Servicer Event of Default or Master Servicer Event of Termination, and after the curing of all such Servicer Events of Default or Master Servicer Events of Termination which may have occurred, shall be determined solely by the express provisions of this Agreement, the Trustee and the Trust Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Trust Administrator and, in the absence of bad faith on the part of the TrusteeTrustee or the Trust Administrator, as applicable, the Trustee or the Trust Administrator, as applicable, may Fremont [200___-___] Pooling & Servicing Agreement 156 conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict it that conform to the requirements of this Agreement;
(IIii) The Neither the Trustee nor the Trust Administrator shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Trust Administrator, as applicable, unless it shall be proved that the Trustee or the Trust Administrator, as the case may be, was negligent in ascertaining the pertinent facts;
(III) The ; and Neither the Trustee nor the Trust Administrator shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders the Holders of any Class holding Certificates which evidence, as entitled to such Class, Percentage Interests aggregating not less than at least 25% as of the Voting Rights relating to the time, method and place of conducting any proceeding for any remedy available to the TrusteeTrustee or the Trust Administrator, or exercising any trust or power conferred upon the TrusteeTrustee or the Trust Administrator, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability in the performance of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(D) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Mortgage Securities Corp)
Duties of the Trustee. (A) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in each by this Agreement, and 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.
(B) The Trustee upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this AgreementSection 4.01. The Trustee shall notify take such action with respect to any event of default under the Certificateholders Mortgages as shall be specified in any notice of any such documents which do not materially conform to default or enforcement event and written instructions of the requirements of this Agreement in Administrative Agent, but the event that the Trustee, after so requesting, does not receive satisfactorily corrected documents.
01. The Trustee shall furnish in a timely fashion not be required to the Master Servicer such information as the Master Servicer may reasonably request from time to time for the Master Servicer to fulfill its duties take any action not expressly set forth in this Agreementsuch written instructions. The Trustee covenants and agrees that it shall perform its respective obligations hereunder in a manner so as to maintain If the status approval of any portion of any REMIC formed under governmental agency or body is required in order to carry out the Series Supplement as a REMIC under the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and avoiding such taxes are reasonably within the control instructions of the Trustee and are reasonably within the scope of their respective duties under this Agreement.
(C) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent actionAdministrative Agent, its own negligent failure to act or its own willful misconduct; providedincluding, however, that:
(I) Prior to the occurrence of an Event of Default, and after the curing or waiver of all such Events of Default which may have occurredwithout limitation, the duties and obligations approval of the Trustee shall be determined solely by the express provisions of this AgreementMARAD under applicable United States Maritime Laws, the Trustee shall not be liable except for required to carry out such instructions unless such approval shall have been obtained.
Section 4.02. The Trustee shall not have any duty or obligation to manage, operate, control, use, sell, make investments in respect of, dispose of or otherwise deal with the performance of such duties and obligations as are specifically set forth in this AgreementShips, no implied covenants any Ship Security Instrument or obligations shall be read into this Agreement against the Trustee and, in the absence of bad faith on the any other part of the TrusteeTrust Estate or to otherwise take or refrain from taking any action under, or in connection with the Ship Security Instruments, except as expressly provided by the terms of this Trust Agreement or as expressly provided in written instructions received from the Administrative Agent. Except for the accounting for monies or things actually received by it as Trustee hereunder the Trustee may conclusively rely, shall have no duties as to the truth of the statements and the correctness of the opinions expressed thereinany monies, upon any certificates instruments or opinions furnished to the Trustee by the Company or the Master Servicer and which on their face, do not contradict the requirements of this Agreement;
(II) securities. The Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer obligated or Responsible Officers of the Trustee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(III) The Trustee required, and this Trust Agreement shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders of any Class holding Certificates which evidence, construed so as to such Class, Percentage Interests aggregating not less than 25% as to the time, method and place of conducting any proceeding for any remedy available to obligate or require the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(IV) The Trustee shall not be charged with knowledge of any default (other than a default in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible Officer of the Trustee assigned to and working in the Corporate Trust Office obtains actual knowledge of such failure or event or the Trustee receives written notice of such failure or event at its Corporate Trust Office from the Master Servicer, the Company or any Certificateholder; and
(V) Except to the extent provided in Section 7.02, no provision in this Agreement shall require the Trustee to expend or risk its own funds (including, without limitation, the making of any Advance) or otherwise incur any personal financial liability responsibility in the performance of any of its duties under this Trust Agreement, to file any reports or other matters with any governmental authority relating to the matters hereof other than those required to be filed by the Trustee as Trustee hereundera depository institution, or in to follow any written instructions received from any Lender or any Person other than the exercise of any of its rights or powers, if Administrative Agent.
(a) In the event the Trustee shall have reasonable grounds for believing that repayment be unable to act as trustee under any applicable governmental rule or regulation, the sole obligation of funds or adequate indemnity against the Trustee hereunder shall be to advise the Administrative Agent promptly of any such risk or liability is not reasonably assured fact of which it has Actual Knowledge and to it.
(D) resign under this Trust Agreement, if requested by the Administrative Agent. The Trustee shall timely payhave no liability to the Administrative Agent, from the Secured Creditors, the Borrower, or any other Person by reason of its failure to be or remain qualified to act under applicable law as trustee, except that the Trustee agrees to pay its own fundscosts and expenses, the amount of any and all federal, state and local taxes imposed on the Trust Fund or its assets or transactions including, without limitation, legal counsel fees and expenses, in connection with any resignation under this Section 4.03.
(Ab) "prohibited transaction" penalty taxes The Trustee shall use its best efforts to maintain itself as defined an approved trustee by MARAD and properly comply with all regulations of MARAD in Section 860F connection therewith including, without limitation, making such reports, filings and accountings as may be required. If the Trustee learns of the Codeoccurrence of events which will or could, ifin its opinion, when result or have resulted in its disqualification, the Trustee shall promptly so advise the Administrative Agent.
Section 4.04. The Trustee shall furnish promptly to the Administrative Agent each communication received by it or a copy thereof relating to any Ship Security Instrument, but shall have no duty to act upon or reply to any such communication in the absence of written instructions from the Administrative Agent.
Section 4.05. The Trustee shall keep custody of any cover notes, insurance policies, brokers' opinion letters, or other documents delivered to it from time to time as may be required by any Ship Security Instrument and as shall promptly give copies thereof to the same Administrative Agent. The Trustee shall have no duty to advise the Administrative Agent of its failure to receive in timely fashion any such insurance document and the responsibility of determining if any insurance document does not comply with the requirements of the Ship Security Instruments shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) solely that of the Code and (C) any tax on "net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the TrusteeAdministrative Agent.
Appears in 1 contract
Samples: Master Vessel and Collateral Trust Agreement (Players International Inc /Nv/)
